Madras High Court
P. Kamala Kannan vs The Registrar General on 25 August, 2022
Author: R.Mahadevan
Bench: R. Mahadevan, Mohammed Shaffiq
WP No. 10533 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.08.2022
CORAM
THE HONOURABLE MR. JUSTICE R. MAHADEVAN
and
THE HONOURABLE MR. JUSTICE MOHAMMED SHAFFIQ
Writ Petition No. 10533 of 2018
and
WMP. No. 12488 of 2018
---
P. Kamala Kannan ..
Petitioner
Versus
1. The Registrar General
High Court of Madras
Chennai - 600 104
2. The Chairman
Bar Council of Tamil Nadu and Puducherry
High Court Campus
Chennai - 600 104
3. Mr. A. Ilangovan
Advocate
No.295, New Additional Law Chambers
High Court Buildings
Chennai - 600 104
4. Mr. Samivel
Advocate
No.295, New Additional Law Chambers
High Court Buildings
Chennai - 600 104
https://www.mhc.tn.gov.in/judis
1/18
WP No. 10533 of 2018
5. Mr. T. Tamilvanan
Advocate
No.295, New Additional Law Chambers
High Court Buildings
Chennai - 600 104
6. Mr. Om Prakash
Senior Advocate
High Court of Madras
Chennai - 600 104
7. Mr. C. Kaliappan
Advocate
No.3/1, Annamalai Gounder Street
Dharmapuri
8. Mrs.R.S.Isabella,
Managing Director i/c.
Repco Bank, No.33, North Usman Road,
T.Nagar, Chennai - 600 017.
9. Mr. P.K. Vaidyanathan
Chief Vigilance Officer
No.33, North Usman Road
T. Nagar, Chennai - 600 017
10. Mr. Thavadurainathan
Joint General Manager (Legal)
REPCO Bank
No.33, North Usman Road
T. Nagar, Chennai - 600 017
11. Mr. Dowlath Basha
Son of Syed Basha
Chathiram Street, Papparapatti
Pennagaram Taluk
Dharmapuri District
https://www.mhc.tn.gov.in/judis
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WP No. 10533 of 2018
12. Mrs. Arshiya
D/o. Nazir
Pallikoodathan Street
Palacode Taluk
Dharmapuri District .. Respondents
Petition filed under Article 226 of The Constitution of India praying to
issue a Writ of Mandamus directing the first and second respondents to debar
the respondents 3 to 7 for having misled the Court on the production of false
and forged documents as genuine in Criminal Original Petition No. 25128 of
2017 and Criminal Original Petition No. 25763 of 2017, on the file of the
Hon'ble High Court on the petitioner's petition dated 17.03.2018.
For Petitioner : Mr. S. Radhakrishnan
For Respondents : Mr. B. Vijay for R1
Mr. C.K. Chandrasekaran for R2
Mr. G. Masilamani, Senior Advocate
for Mr. R. Murali for RR3 to 5
ORDER
[Order of the Court was made by R. MAHADEVAN, J] The petitioner has filed this writ petition to issue a Writ of Mandamus directing the respondents 1 and 2 herein to debar the respondents 3 to 7 for having misled this Court by producing false and forged documents as genuine in Criminal Original Petition Nos. 25128 of 2017 and 25763 of 2017.
2. The facts, which have given rise to the petitioner to file this writ https://www.mhc.tn.gov.in/judis 3/18 WP No. 10533 of 2018 petition are as follows:
2.1. The petitioner joined the REPCO Bank at Madurai in the year 2005 and was transferred to various places from time to time. After successive promotions, he rose to the post of Chief Manager. During the course of his service, in the year 2014, he was posted as Branch in-charge of Dharmapuri and also promoted as scale II and continued there as Chief Manager. At that time, he was instrumental in reducing the non-performing assets of the branch to 2%, besides improving the business of the branch and therefore, the eighth respondent herein, who was Managing Director (i/c) of the Bank, awarded the best performer award to him continuously for two years viz., 2014-2015 and 2015-2016.
2.2. While so, the petitioner was elected as General Secretary of REPCO Bank SC/ST Employees Welfare Association and in such capacity, he placed a request to the 8th respondent to fill up the backlog vacancies of SC/ST employees in the Bank and to conduct the SC/ST monthly Grievance Redressal Meetings, but, the eighth respondent did not respond to the same. According to the petitioner, since he was the General Secretary of the SC/ST Employees Association, he should have been posted in the Head Quarters at Chennai to facilitate him to have interaction with the office bearers of the Association at regular intervals, who are mostly working in the Head Office at Chennai.
https://www.mhc.tn.gov.in/judis 4/18 WP No. 10533 of 2018 However, whimsically, he was transferred to Madurai and posted as Level II Officer; and he was relieved from Dharmapuri on 02.05.2017, after handing over all the charges including the cash, jewel pockets, valuable securities and all the loan papers, which was also verified by one Indira Devi, present Chief Manager of the Bank.
2.3. The petitioner further stated that according to the ill-advice of the 8th respondent, the ninth respondent lodged a complaint against him, as if the petitioner entered into criminal conspiracy with unknown persons, abused his official position as public servant and committed criminal breach of trust in the form of misappropriation of loan and embezzlement of money without the knowledge of the borrowers to the tune of Rs.1.41 crores; he was found to have disbursed loan of Rs.10 lakhs to the 11 th respondent without his signature in the forms and without obtaining the property documents as mortgage; he was alleged to have issued loan closure receipts individually to 7 borrowers/who are the relatives of 11th respondent including 12th respondent, all on 06.01.2017 by affixing bank seal and signing them on a Rs.50/- stamp paper to the tune of Rs.1.56 crores and these amounts were not accounted in the branch books of account; and the acts of the petitioner have caused a loss to the bank to the extent of Rs.6.77 crores.
2.4. Based on the forged and fabricated documents created by the https://www.mhc.tn.gov.in/judis 5/18 WP No. 10533 of 2018 seventh respondent, with the connivance of the respondents 8 to 10 along with the present Branch Manager Indira Devi, the aforesaid complaint was lodged by the ninth respondent and the same was registered as District Crime Branch, Dharmapuri Cr.No.9 of 2017 on 15.11.2017 against the petitioner for the alleged offences under sections 409, 420, 423, 467, 468 & 477A IPC. Pursuant to the same, the petitioner was suspended from service and was subjected to departmental enquiry.
2.5. That apart, the petitioner stated that the aforesaid forged and fabricated documents were also produced through the respondents 3 to 6 / Advocates to this court, at the time of hearing the cases in Crl.OP.No.25128 of 2017 (anticipatory bail petition) and Crl.OP.No.25763 of 2017 (petition seeking direction to the police to register his complaint dated 16.11.2017) filed by the petitioner and both the petitions were dismissed. Since the respondents 3 to 6/ Advocates without properly verifying those forged and fabricated documents, referred the same to this court as genuine and contested the said criminal original petitions against the petitioner, thereby misleading this court, the petitioner made a representation on 17.03.2018 to the respondents 1 and 2 requesting to take action against those respondents by debarring them from practicing as Advocates. Finding no response on the same, he has come up with this writ petition.
https://www.mhc.tn.gov.in/judis 6/18 WP No. 10533 of 2018 3.1. Mr. Radhakrishnan, learned counsel appearing for the petitioner would submit that the petitioner has duly discharged his duty as per the norms of the Bank as well as the guidelines issued by the Reserve Bank of India and Government of India from time to time; and he has not committed any offence, as alleged in the complaint. Adding further, the learned counsel submitted that the petitioner handed over all the properties to his successor as per the norms of the bank on 02.05.2017 and thereafter only, he was relieved from the post. Had there been any shortcomings, the petitioner would not have been relieved from his post upon transfer to Madurai. Thus, the petitioner was targeted merely of his activities as General Secretary of Repco Bank SC/ST Employees Welfare Association and the complaint given against him is nothing but a false one.
3.2. The learned counsel appearing for the petitioner further submitted that the eighth respondent is instrumental for creating all the false allegations by forged and fabricated documents against the petitioner. The 7th and 11th respondents actively assisted the eighth respondent in creating the forged documents to whimsically implicate the petitioner in the criminal case. Placing reliance on those documents, without ascertaining the genuineness of the same, the respondents 3 to 6 / Advocates, at the time of hearing the cases in Crl.OP https://www.mhc.tn.gov.in/judis 7/18 WP No. 10533 of 2018 Nos.25128 of 2017 and 25763 of 2017, made this Court to believe that the petitioner had committed serious irregularities, while discharging his duties in the Bank. Therefore, for the act of suppressing the material particulars at the time of hearing of those criminal original petitions, the respondents / advocates have to be debarred from practice. In this regard, the petitioner made a representation on 17.03.2018 to the respondents 1 and 2 requesting to take action against them, which was neither rejected nor acted upon. Thus, according to the learned counsel, the non-consideration of the representation dated 17.03.2018 submitted by the petitioner warrants issuance of a Mandamus to the second respondent.
4. Mr. B. Vijay, learned counsel appearing for the first respondent would submit that the first respondent is not a proper and necessary party to this writ petition and the relief sought herein is only against the second respondent, to whom, the petitioner has given the representation dated 17.03.2018. Even otherwise, the second respondent is the competent person to act upon the complaint dated 17.03.2018 submitted by the petitioner. While so, the petitioner ought not to have impleaded the first respondent as a party to this writ petition. The learned counsel therefore prays for dismissal of the writ petition on the ground of misjoinder of necessary party, as against the first https://www.mhc.tn.gov.in/judis 8/18 WP No. 10533 of 2018 respondent.
5. The learned counsel for the second respondent would submit that the respondents 3 to 6 are practicing as advocates before this court. Unless there is any specific allegation brought to the notice of the second respondent attributing professional negligence or misconduct on the part of the respondents / advocates, no action could be taken against them. Thus, according to the learned counsel, mere sending a representation to the second respondent, will not compel this court to issue a mandamus to the second respondent. The learned counsel further submitted that the respondents 3 to 6 made their submissions, when the Criminal Original Petition Nos. 25128 of 2017 and 25763 of 2017 were taken up for hearing; this court, on appreciation of the rival submissions, dismissed the petitioner's two petitions for anticipatory bail and direction to the respondent police to register a criminal case, on the basis of his complaint dated 16.11.2017, on merits; and hence, there is no element of professional negligence or misconduct on the part of the respondents 3 to 6 in defending the cases. In such circumstances, the petitioner is not entitled for any relief in this writ petition.
6. Mr. G. Masilamani, learned senior counsel for the respondents 3 to 5 would vehemently contend that on the basis of the complaint given by the https://www.mhc.tn.gov.in/judis 9/18 WP No. 10533 of 2018 ninth respondent against the petitioner, the case in Crime No. 9 of 2017 was registered by the District Crime Branch, Dharmapuri for the offences punishable under Sections 409, 420, 423, 467, 468 and 477-A of Indian Penal Code. In fact, the petitioner has also filed Criminal Original Petition No. 15875 of 2018 to quash the said First Information Report in Crime No. 9 of 2017 and this Court, by order dated 28.06.2018, refused to quash the same and accordingly, dismissed the said petition by directing the petitioner to face the ordeal of trial. Continuing further, the learned Senior Counsel submitted that considering the seriousness of the charges framed against the petitioner that he abused his official position as public servant and committed criminal breach of trust in the form of misappropriation of loan and embezzlement of money without the knowledge of the borrowers and disbursed loan without signature and obtaining property documents as mortgage and also issued loan closure receipts to 7 borrowers by affixing bank seal and signing them in a Rs.50/- stamp paper, thereby caused loss to the bank to the tune of Rs.6.77 crores, the learned Judge dismissed the said Criminal Original Petition filed by the petitioner for quashing the said FIR. Further, the learned Judge transferred the investigation of the said case to the file of the CBI, EWO, Chennai and accordingly, the said case was transferred from the District Crime Branch, Dharmapuri to the file of CBI, Economic Offences Wing, Chennai vide https://www.mhc.tn.gov.in/judis 10/18 WP No. 10533 of 2018 RC.6/E/2018-CBI/EOW dated 26.09.2018 and now, the investigation is pending. Stating so, the learned senior counsel submitted that the petitioner, instead of facing the criminal prosecution, has come forward with this writ petition seeking a direction to the second respondent to take action against the respondents 3 to 6, who are practicing as advocates before this Court, for the alleged suppression of material particulars, while defending the petitions viz., Crl.OP Nos. 25128 of 2017 and 25763 of 2017. It is also submitted by the learned senior counsel that the respondents / advocates have acted as per the instructions given by their clients and this court dismissed those petitions, only on merits. Thus, according to the learned senior counsel, the petitioner, in order to escape from the clutches of law, has come forward with this writ petition without any basis and hence, the same will have to be dismissed with exemplary costs.
7. We have heard the learned counsel for all the parties and perused the materials placed on record.
8. It is an admitted fact that the petitioner was working as Chief Manager of the REPCO Bank, Dharmapuri, during the relevant point of time and a case in Crime No.9/2017 was registered against him, for the alleged https://www.mhc.tn.gov.in/judis 11/18 WP No. 10533 of 2018 offences punishable under sections 409, 420, 423, 467, 468 and 477A IPC, based on the complaint lodged by the ninth respondent herein. Subsequently, as per the order dated 28.06.2018 passed in Crl.OP.No.15875 of 2018, the said case was transferred from the file of the District Crime Branch, Dharmapuri to the file of the Central Bureau of Investigation, EOW, Chennai, by RC.No.6/E/2018-CBI/EOW/Chennai dated 26.09.2018 and the offences were altered into one under sections 409, 420, 423, 467 & 477A including the offence under section 13(2) r/w 13 (1)(d) of P.C. Act 1988.
9. According to the petitioner, he is innocent and the respondents 7, 8, 9, 10 and 11 have conspired together, created false and fabricated documents and implicated him in the criminal case; and that, the respondents 3 to 6 have produced those forged and fabricated documents without verifying the genuineness of the same and misrepresented to this Court at the time of hearing the petitions filed by the petitioner seeking anticipatory bail and direction to register a case, thereby responsible for dismissal of those cases and hence, they have to be debarred by the second respondent from practicing as advocates. On the other hand, it is the categorical submission of the contesting respondents/advocates that they are discharging their duties based on the instructions given by their clients and as per the conduct and code and that, they have not made any misrepresentation to this court and the petitioner's https://www.mhc.tn.gov.in/judis 12/18 WP No. 10533 of 2018 petitions were dismissed by the learned Judge, on merits.
10. It is evident from the pleadings as well as the documents produced, that the petitioner was subjected to criminal prosecution in connection with the case in Cr.No.9/2017 for the alleged acts of misconduct of his official position, criminal breach of trust, cheating, dishonest or fraudulent execution of deed of transfer, forgery of valuable security and falsification of accounts, which are grave in nature. Pursuant to the said case, the petitioner was arrested and remanded to judicial custody. It is also borne out from the records that the petitioner also made a complaint on 16.11.2017 stating that he belongs to scheduled caste community and also holds the post of General Secretary of the REPCO SC/SC Employees Welfare Association; the higher officials of the Bank had given a false complaint of misappropriation against him; and hence, they are liable to be prosecuted for the offences under the provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015, however, the said complaint was pending. Therefore, the petitioner filed petitions viz., Crl.OP.Nos.25128 of 2017 (anticipatory bail) and Crl.OP.No.25763 of 2017 (Register the complaint) and in the petition seeking anticipatory bail, the sixth respondent, who is a senior counsel, appeared for the intervenor and made his submissions, as instructed by his client. After analysing the facts and circumstances of the case, both the https://www.mhc.tn.gov.in/judis 13/18 WP No. 10533 of 2018 criminal original petitions were dismissed by separate orders by the learned Judges, on merits, on the same premise that the allegations levelled against the petitioner are serious in nature and the truthfulness of the same can be ascertained, only after conducting due investigation and hence, the relief sought by the petitioner cannot be granted at the nascent stage. This is explicit from para Nos. 8 and 9 of the order dated 08.03.2018 passed in Crl.OP No.25128 of 2017 which read as follows:-
"8. Heard the arguments of the respective counsels and gone through the typed set of papers filed on behalf of the petitioner as well as the Intervener and the counter affidavit filed by the first respondent.
9. It is a case where serious allegations of forgery, fabrication of documents and falsification of accounts and misappropriation of amount to the tune of Rs.6.77 crores stated to have been committed by the petitioner/accused. This case is at the initial stage of investigation. This Court is of the opinion that the custodial interrogation of the petitioner is very much necessary for this case and it is not a fit case for grant of anticipatory bail. Petition for anticipatory bail is dismissed. Consequently, Crl.M.P. No. 14942 of 2017 is closed."
In the order dated 13.08.2018 passed in Crl.OP.No.25763 of 2017, while refusing to register the complaint, it was observed by the learned Judge as follows:
"6.I am unable to comprehend as to how the complaint can, at any stretch of imagination, make out an offence under the Special Act....
XXX XXX XXX
10.It would not be out of place to mention here that the petitioner herein had sent various other complaints to police officials through registered post on 06.07.2017, 01.08.2017, 22.08.2017 and 16.11.2017. These complaints would only indicate that the petitioner is attempting to thwart the disciplinary proceedings and criminal action contemplated against him, which would clearly amount to an abuse of process of law. Even in the present case, the petitioner had chosen to give the complaint dated https://www.mhc.tn.gov.in/judis 14/18 WP No. 10533 of 2018 16.11.2017 to the Home Secretary, Government of Tamil Nadu, Secretariat, Chennai, and had marked the copies to the Additional Director General of Police, Human Rights and Social Justice, Mylapore, Chennai, the Superintendent of Police, Dharmapuri and the Inspector of Police, District Crime Branch, Dharmapuri, who are the respondents 1 to 4 herein. When the fourth respondent alone is the jurisdictional officer to look into the petitioner's complaint, addressing the respondents 1 to 3 herein is not only unwarranted but would also amount to an abuse of process of law."
Thus, it is manifestly clear that merely recording the submissions made by the learned counsel, the petitions filed by the petitioner were dismissed by the learned Judges, on merits, taking note of the gravity and magnitude of the offences alleged to have been committed by the petitioner; and there was no suppression of material fact by the respondents / advocates, while making the submissions before this court and they have acted in accordance with the instructions given by their clients. In such circumstances, it cannot be stated that the respondents / advocates have misrepresented to this court, which led to dismissal of the petitions filed by the petitioner.
11. At this juncture, it is pertinent to mention here that apart from the aforesaid two criminal original petitions, the petitioner filed some other criminal original petitions viz., Crl.OP.No.27439 of 2017 (transfer the investigation to CBI) and Crl.OP.No.15875 of 2018 (quash the FIR in Cr.No.9/2017). Both the petitions were also dismissed by the learned Judges, on merits. In the order dated 28.06.2018, passed in Crl.OP.No.15875 of 2018, https://www.mhc.tn.gov.in/judis 15/18 WP No. 10533 of 2018 it was observed by the learned Judge that “when the bank started to take disciplinary action against the petitioner, he had lodged complaints on 06.07.2017, 01.08.2017 and 22.08.2017 alleging that he was abused by his caste name by the Vigilance Officer on the instigation of the Managing Director of the bank; he has further sought action to be taken against his superior under the SC/ST Act; he has also filed a petition in Crl.OP.No.15468 of 2017 for a direction to investigate his complaints; thus it appears that the petitioner is taking shelter under the umbrella of caste in order to stifle the ongoing domestic enquiry and criminal investigation against him, which cannot be countenanced and deserves to be deprecated”.
12. From the above, it could be inferred that the petitioner, having failed in his attempts to thwart the criminal prosecution, has made a complaint to the respondent authorities to take action against the respondents / advocates to debar them from practice, alleging that they produced the false and fabricated documents as genuine and misled this court, while defending the criminal original petitions viz., Crl.OP.Nos.25128 and 25763 of 2017 filed by the petitioner, thereby committed the professional misconduct, punishable under the provisions of the Advocates Act. Since the said complaint was not considered, he has invoked the writ jurisdiction under Article 226 of the https://www.mhc.tn.gov.in/judis 16/18 WP No. 10533 of 2018 Constitution of India. This court is of the opinion that the petitioner, in order to circumvent the criminal proceedings initiated against him, has preferred this writ petition and there is no substance herein. Therefore, in the absence of any concrete material, the relief sought by the petitioner cannot be granted and the writ petition is liable to be dismissed.
13. Accordingly, this writ petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
(R.M.D., J) (M.S.Q., J)
25.08.2022
rsh
To
1. The Registrar General
High Court of Madras
Chennai - 600 104
2. The Chairman
Bar Council of Tamil Nadu and Puducherry
High Court Campus
Chennai - 600 104
https://www.mhc.tn.gov.in/judis
17/18
WP No. 10533 of 2018
R.MAHADEVAN, J.
and
MOHAMMED SHAFFIQ , J.
rsh
WP No. 10533 of 2018
25.08.2022
https://www.mhc.tn.gov.in/judis
18/18