Madras High Court
Tamil Selvan vs Central Government Rep By Its on 23 October, 2018
Author: G.Jayachandran
Bench: G.Jayachandran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 23.10.2018
Date of Reserving the Order
Date of Pronouncing the Order
04.10.2018
23.10.2018
CORAM
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Crl.A(MD)Nos.101 of 2010
and 452 of 2010
Crl.A(MD)No.101 of 2010
1.Tamil Selvan
2.T.Gunasekaran : Appellants/Accused 1 and 2
Vs.
Central Government rep by its
Inspector of Police,
C.B.I./A.C.B/Chennai.
R.C.No.35(A)/06 : Respondent/complainant
PRAYER : Criminal Appeal is filed under Section 374 of the Code of Criminal
Procedure, to set aside the conviction and sentence imposed by the Special
Court for C.B.I cases, Madurai in C.C.No.03 of 2007 dated 08.03.2010 and
allow this Criminal Appeal.
For Appellants : Mr.M.JothiBasu
For Respondent : Mr.N.Nagendran,
Special Public Prosecutor
for CBI Cases.
Crl.A(MD)No.452 of 2010
State represented by
Inspector of Police,
CBI, ACB, Chennai. : Appellant/Complainant
Vs.
K.Nagooran : Respondent/Accused No.4
PRAYER : Criminal Appeal is filed under Section 374 of the Code of Criminal
Procedure, to call for the records and set aside the judgment of Special
Judge for CBI cases, Madurai, dated 08.03.2010 in C.C.No.03 of 2007 and
convict the respondent/accused herein.
For Appellant : Mr.N.Nagendran,
Special Public Prosecutor
for CBI Cases.
For Respondent : Mr.S.Thirupathi
:COMMON JUDGMENT
Crl.A(MD)No.101 of 2010 has been preferred by the accused Tamil Selvan(A-1) and T.Gunsekaran (A-2) against the conviction and sentence imposed on them by the trial Court in C.C.No.03 of 2007 on the file of the learned Special Judge for CBI Cases, Madurai. Whereas Crl.A(MD)No.452 of 2010 has been preferred by the State against the order of acquitting A-4 (K.Nagooran) in C.C.No.3 of 2007 on the file of the learned Special Judge for CBI Cases, Madurai..
2.The facts of the case and evidence leading to convicting A-1 and A-2 for the offence under Section 182 IPC and A-2 for offence under Section 511 r/w. 420 IPC and acquitting A-4 from the charges under Sections 120B r/w 182, 420 and 511 IPC and 13(2) r/w 13 (1) (D) Prevention of Corruption Act 1988, are as below:-
(i)The National Insurance Company and other Insurance Company filed a batch of Writ Petitions before the Hon'ble High Court of Madras, seeking CBI investigation to probe fake accident claims preferred by various claimants, based on the fake or forged First Information Report by fabricating records, as if the injuries sustained by the victim were due to road accident caused by vehicles insurer under there companies. Pursuant to the Writ petitions, the Hon'ble High Court in a batch of writ petitions vide common order dated 20.07.2006 directed the CBI to investigate 13 specific cases Crime No.38 of 1999 on the file of the Mimisal Police Station, Pudhkottai is one among those 13 cases.
(ii)Pursuant to the said direction of the High Court, CBI has registered a case under Sections 420, 120-B and 511 IPC as against Tamil Selvan and T.Gunasekaran and investigated. At the end of the investigation, they found that Tamil Selvan(A-1), T.Gunasekaran(A-2), IllayaPerumal (A-3) and Nagooran (A-4) entered into a criminal conspiracy on 17.09.2009 at Pudukottai to cheat the National Insurance Company and to avail insurance claim by preferring false claim petition for the self inflicted injuries sustained by T.Gunasekaran. Pursuant to the said conspiracy T.Gunasekaran(A-2) in connivance with K.Nagooran (A-4), the then Sub Inspector of Mimisal Police Station has created a compliant, as if T.Gunasekaran sustained injury by falling in Bajaj M 80 two wheeler bearing registration No.TN 55 C 2932 as pillion rider while V.Tamil Selvan riding the two wheeler. Pursuant to the said conspiracy, First Information Report was registered by the K.Nagooran(A-4) based on the false complaint given by T.Gunasekaran. The First Information Report was registered after 56 days from the date of occurrence. Final report with fabricated documents as if A- 4 investigate the Motor Accident and found that V.Tamilselvan had rash and negligently driven the Bajaj M 80 vehicle and lost his control while negotiating the turn and thereby the pillion rider T.Gunasekaran was thrown out from the vehicle and sustained fracture. Based on the final report filled by A-4, V.TamilSelvan was produced before the Magistrate and he was read over the charges against him for the offence under Sections 279, 337 and 338 IPC.
(iii)In C.C.No.119 of 2000 (arising out of Crime No.38 of 1999 on the file of Mimisal Police Station) the learned Judicial Magistrate convicted V.Tamilselvan (A-1) based on the guilty pleaded for the offence under Section 279 IPC sentenced him to pay a fine of Rs.500/- in default to undergo 1 month simple imprisonment and for the offence under Section 338 IPC he was sentenced to pay a fine of Rs.750/- in default to undergo 1 month simple imprisonment vide order dated 11.05.2000. V.Tamilselvan (A-1) has paid the total fine amount of Rs.1,250/-.
(iv)Thereafter, T.Gunasekaran(A-2) has filed a claim petition in M.C.O.P.No.733 of 2000 before the Motor Accidents Claims Tribunal, Pudukottai claiming Rs.10,00,000/- as compensation for the injuries sustained by him against the owner of the Bajaj M 80 and the Branch Manager of National Insurance Company.
(v)In the final report, CBI concluded that on the date of accident Bajaj M 80 bearing Registration No.TN55 C 2932 was driven solely by T.Gunasekaran and he had fell down on his own and sustained injury. Whereas, fake records have been created after 56 days by registering the First Information Report with false statements. K.Nagooran(A-4), Sub Inspector of police attached to Mimisal Police Station has registered a false First Information Report belatedly and created false documents like statements of witnesses, suppressed the motor vehicle inspector's report and had filed final report against A-1, who pleaded guilty, though he was no way connected with the injuries sustained by A-2. Thereafter, A.2 filed accident claim petition with an attempt to cheat the insurance company to the tune of Rs.10 lakhs.
(vi)During the course of investigation, the CBI has also collected the report of Vigilance team constituted by the insurance company. The deposition of the Doctor, who treated T.Gunasekaran, when he got admitted at the Hospital on 23.05.1999, where he has recorded that T.Gunasekaran, who was admitted in the hospital, informed the Doctor that while driving the Bajaj M 80, he fell on his own and sustained the said injury.
(vii)The prosecution, before the trial Court examined 22 witnesses and marked 28 exhibits to establish that the complaint generated in the name of V.Tamilselvan(A-1) regarding the accident dated 23.05.1999, is false. The final report filed by K.Nagooran(A-4) based on the false complaint, is contrary to the facts. The statements accompanied with his final Report are fabricated statements. V.Tamilselvan (A-1) admitted his guilty of fake accident with an intention to enable T.Gunasekaran (A-2) to get compensation. Making use of these documents, T.Gunasekaran has preferred M.C.O.P.No.733 of 2000 on the file of the Motor Accidents Claims Tribunal, Pudukottai, claiming Rs.10 lakhs as compensation.
(viii)The trial Court has found that the prosecution has proved the guilt of A-1 and A-2 and convicted A-1 for the offence under Section 182 IPC and sentenced him to undergo 3 months rigorous imprisonment with fine of Rs.1,000/- in default to undergo one month rigorous imprisonment and also found A-2 guilty for the offence under Sections 182 and 511 r/w 420 IPC and sentenced him to undergo 3 months rigorous imprisonment and to pay a fine of Rs.1,000/- in default to undergo one month rigorous imprisonment for each of the offences. Since, pending trial A-3 died, case against him got abated. A-4 was acquitted from the charge under Section 120-B r/w 420, 511 and 13(2) r/w 13(1)(d) of PC Act. As against the conviction, A-1 and A-2 have preferred appeal in Crl.A(MD)No.101 of 2010. As against the order of acquittal of A-4, the State has preferred Crl.A.(MD)No.452 of 2010.
3.Both the appeals are taken up for consideration together on consent by the learned counsels.
4.According to the accused A-1 and A-2 who were found guilty by trial Court, there is no eyewitness to the accident alleged to have taken place on 23.05.1999. The evidence of P.W.1, Doctor who admitted A-2 in the hospital and the Accident Register (Ex.P.1) are not substantive piece of evidence to hold that the injury sustained by A-2 was due to the accident fall while self driving. In the absence of corroboration, neither the Accident Register Ex.P.1 nor the oral evidence of P.W.1 ought to have been relied by the Court below. The evidence of P.W.13, the private investigating officer appointed by the insurance company, does not support the case of the prosecution. Whereas, the evidence of P.W.15 goes to prove that at the time of accident both A-1 and A-2 were travelling in Bajaj M-80 and fell down.
5.Whereas in the appeal against the acquittal filed by the State, it is contended that the trial Court ought not to have acquitted A-4, who is the prime perpetrator of the claim and but for his connivance, the false complaint by A-1 might have not been registered after 56 days of the occurrence and but for his fabricated statements of witnesses and documents accompanied with final report, the learned Judicial Magistrate ought not have recorded the guilty plea of A-1 and convicted him for the offence under Sections 279, 337 and 338 IPC .
6.Further in response to the appeal preferred by the accused 1 and 2, the learned Special Public Prosecutor of CBI would submit that the deposition of P.W.1 Dr.G.Rathakrishnan, Medical Officer attached to the Government Hospital, Aranthangi indicates that T.Gunasekaran (A-2) came to the hospital on 23.05.1999 at about 2.15 p.m. and his father-in-law Venkatachalam accompanied him. On enquiry, he came to know that at 12.00 noon, T.Gunasekaran fell down from Bajaj M 80 vehicle on his own. Recording the same he has registered the accident register Ex.P.1. Since it was self inflicting wound, he had not intimated the police. According to P.W.1, it was not the medical legal case fit to refer to the police. The wound certificate of T.Gunasekaran dated 21.12.1999 which was marked as Ex.P.3 would suffice to prove that the injury sustained in an accident happened on 23.05.1999 and the complaint has been created after 56 days with false information. Records were manipulated as if the injury was sustained in an accident happened on 23.05.1999, while the complaint, First Information Report, Final Report and the judgment pronounced to the final report passed by the learned Judicial Magistrate, clearly indicate that it is contrary to the evidence of P.W.1 and the medical records Ex.P.1 and Ex.P.3.
7.Therefore, the learned Special Public Prosecutor for CBI would contend that though the trial Court has acquitted the accused for the offence of conspiracy, the chain of event as proved by the prosecution, clearly establishes the fact that the averments made by the A-2 in his Motor Accident Claim petition in M.C.O.P.No.733 of 2000 on the file of the Motor Accident Claims Tribunal, Pudukottai is false and A-2 knowingly had filed the claim petition with false statements and fabricated documents with an intention to cheat the insurance company.
8.For the said crime, A-1 has given a false complaint to A-4 for registering the First Information Report. Since the information found in the complaint are false and intended to cause public servant to use his power to do an act which he has not supposed to do or ought not to have done if he knows that the information is a false information. The Trial Court while rightly convicting A-1 and A-2 for the offence committed by them, also ought to have convicted A-4 for knowingly registering the motor accident case belatedly containing false information and also for filing final report based on the false information.
9.Points for consideration:-
Whether the trial Court has appreciated the evidence properly while convicting A-1 and A-2 and acquitting A-4, in the light of documentary evidence as well as the oral evidence would indicate that claim petition filed was based on the fake documents?
10.The deposition of P.W.1 -Doctor, who admitted A-2 for his injury. Wound certificate issued by him and accident register maintained in the hospital is Ex.P.1. These evidence coupled with the deposition of P.W.13 and his report Ex.P.17 are pivotal to the case of the prosecution. The complete analysis of their evidence and the documents viz., Ex.P.1, Ex.P.3 and Ex.P17 would clearly establish the fact that the injury sustained by A-2 for which he has filed the claim petition in M.C.O.P.No.733 of 2000, was not sustained by him, in the manner in which A-2 has stated in his claim petition. The documents relied on by the prosecution marked through P.W.1 and P.W.13, comprehensively indicates that A-2 sustained injury on 23.05.1999, got admitted in the Government Hospital on the same day. He had been treated as inpatient for nearly 120 days and got discharged on 28.09.1999. He was admitted in the hospital by his father-in-law Venkatachalam and at the time of admission, he has stated to the Doctor-P.W.1 that he fell down from the vehicle on his own losing balance and sustained injury. Nearly after 56 days the First Information Report has been registered by A-4 on 17.07.199, as if he was on patrol in Chithiravilakkam Village, one Venkatachalam informed him that T.Gunasekaran, Son of Thangamuthu is admitted in the hospital for the injury sustained by him in a road accident. On receiving the said information, he went to the hospital and recorded the statement of T.Gunasekaran in which T.Gunasekaran has informed him that Bajaj M 80 was driven by V.Tamilselvan, in which he is the pillion rider V.Tamilselvan while negotiating a turn, lost his control. Both fell down, in which he sustained grievous injury.
11.It is the contention of the learned counsel for the respondent/A-4 in the appeal against the acquittal that based on the information given by Venkatachalam, A-4 has gone to hospital, based on the information given by T.Gunasekaran, he has registered the First Information Report and after investigation filed a final report. Registering the First Information Report based on the false information found in the statement of T.Gunasekaran cannot be faulted. Since his investigation lend support to the first information he filed the final report. In fact, the trial Court has also convinced by the said submission and acquitted him, holding A-4 had no role in the alleged conspiracy or fabrication of records with other accused.
12.Therefore, the learned counsel would submit that acquittal A-4 by the trial Court has enured him with double benefit. Therefore, when two views are possible, the second view in favour of the accused has been accepted by the trial Court and the same need not be disturbed.
13.Contrary to this submission, this Court finds that had A-4 properly investigated the case based on the statement given by T.Gunasekaran, he would not have filed the final report and allowed A-1 to plead guilty. It is not registering the First Information Report with delay of 56 days filed against the A-1, it is his mala fide to entertain the complaint after 56 days of occurrence with false information and filing final report with fabricated statements is subjected to trial. The motor vehicle inspector report dated 26.07.1999 does not indicate any fresh damage to the vehicle. The Doctor (P.W.1) who admitted A-2 and given the wound certificate had categorically stated that T.Gunasekaran sustained injury on his own as per the accident register.
14.P.W.15 witness to the observation mahazer Ex.P-7 has deposed that he saw A-1 and A-2 riding Bajaj M-80 vehicle and fell down. Admittedly P.W-15 known to the accused persons and they have been treated as hostile by the prosecution. If this evidence is accepted, it is not only T.Gunasekaran sustained injury but also V.Tamilselvan had sustained injury. According to him, they were lying down with injury and he saw that. Whereas it is not the case of the accused persons that in the said accident V.Tamilselvan also sustained injury and got treatment. While so, the prosecution has rightly called P.W.15 hostile. Thus fabrication of the event has been proved and placed before the trial Court through P.W.1, P.W.13 as well as through the hostility of P.W.15. The involvement of A-1, A-2 and A-4 in the crime has been thus clearly proved beyond doubt by the prosecution. However, the trial Court by improper appreciation of the evidence has exonerated A-4 from all the charges.
15.This Court finds that attempt to cheat the insurance company by A-2 in filing M.C.O.P.No.733 of 2000 based on the false documents, is well established. The injury sustained by A-2 as alleged in his claim petition, is false and it is based on the fabricated documents and false statement of A-2 and the First Information Report filed by A-4. The falsity in the above documents has been found through Ex.P.1 and Ex.P.3, which is corroborated by the evidence of P.W.1.
16.A-1 knowing fully well that the final report filed by A-4 against him before the learned Judicial Magistrate, Arathangi in C.C.No.119 of 2000 is based on the false information and fabrication of statements but in order to help his friend A-2, dishonestly pleaded guilty and paid fine of Rs.1,250/-. Thus, the offence under Section 182 IPC against A-1 and the offences under Sections 182 and 511 r/w 420 IPC against A.2 are well established. The trial Court has rightly held them guilty for those offences and convicted them. Hence, there is no reason to interfere in the judgment of the trial Court in respect of A-1 and A-2. Accordingly, the appeal filed by A-1 and A-2 in Crl.A.No.101 of 2010 is liable to be dismissed.
17.For the reason recorded above, this Court finds that acquittal of A- 4 from the offence under Section 13(2) r/w 13(1)(d) of PC Act for illegally obtaining pecuniary advantage for himself or any other person by corrupt and illegal means, is also found proved. As pointed above if A-4 had done the investigation bona fidely, he would not have filed a final report against A- 1, as if A-1 while driving the two wheeler, A-2 sitting on pillion fell down and sustained injury. These documents have been created by A-4 to show the injury sustained by A-2 was a consequence of his fall down from Bajaj M 80 two wheeler while he was traveling along with A-1 as pillion rider. While the prosecution has proved that on the fateful day A-1 was not at all in the spot. A-2 alone was riding the scooter and fell on his own, so he is not entitle for road accident compensation but to make illegal gain First Information Report registered with false content. The corrupt intention of A.4 to enable A.2 to get pecuniary advantage by illegal means, is well founded. Therefore, the acquittal of A-4 by the trial Court needs interference, since it is illegal and perverse.
18.In this regard, though the Code of Criminal Procedure mandates that if a person found guilty, he shall be provided with an opportunity to say about the sentence to be imposed on him. This Court consciously dispense with that procedure in the light of the fact that Section 13(2) of PC Act prescribes minimum sentence of one year and fine. Since, the statute prescribes minimum sentence, this Court is of the view that minimum sentence is suffice in the present case and the accused need not be questioned regarding the sentence. When he is sentenced to under only the minimum sentence prescribed in the law.
19.Accordingly, A-4 is found guilty of the offence under Section 13(2) r/w 13(1)(d) of PC Act and sentenced to undergo one year rigorous imprisonment and to pay a fine of Rs.1,000/- in default to undergo one month simple imprisonment.
20.In the result,
(i)Crl.A(MD)No.101 of 2010 is dismissed. The conviction and sentence passed against the appellants/A.1 and A.2 dated 08.03.2010 in C.C.No.3 of 2007 by the learned Special Judge for CBI Cases are confirmed. The appellants/A.1 and A.2 are directed to surrender before the Trial Court within a period of 30 days from today, failing which, the respondent police is directed secure them and commit them to prison to undergo the remaining period of sentence. The bail bonds if any executed by the appellants/A-1 and A-2 shall stand cancelled.
(ii)Crl.A(MD)No.452 of 2010 is allowed. The order of acquittal passed in respect of the appellant/A.4 dated 08.03.2010 in C.C.No.3 of 2007 by the learned Special Judge for CBI Cases is set aside. A-4 is convicted for the offence under Section 13(2) r/w 13(1)(d) of PC Act and sentenced to undergo one year rigorous imprisonment and to pay a fine of Rs.1,000/- in default to undergo one month simple imprisonment. The period of imprisonment already undergone by him, if any, shall be set off. The appellant/A-4 is directed to surrender before the trial Court within a period of 30 days from today, failing which the respondent police is directed to secure him and commit him to prison to undergo remaining period of sentence.
To
1.The Special Court for C.B.I cases, Madurai.
2.The Inspector of Police, C.B.I./A.C.B/Chennai. .
3.The Special Public Prosecutor for CBI Cases, Madurai Bench of Madras High Court, Madurai.
4.The Section Officer, Criminal Section (Records) Madurai Bench of Madras High Court, Madurai.
.