Madras High Court
S.Palanivelu (Reported Dead) vs State Rep. By on 17 July, 2007
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reservation 26.07.2018
Date of Judgment 26.10.2018
CORAM
THE HONOURABLE MRS. JUSTICE T.KRISHNAVALLI
Crl.R.C(MD)Nos.472, 479 and 511 of 2007
1.Crl.RC(MD)No.472 of 2007:-
1.S.Palanivelu (reported dead)
2.K.Chandramohan : Revision Petitioners/
Appellant/A11 and A13
Vs.
State rep. by
Inspector of Police,
C.B.C.I.D,
Thanjavur. : Respondent/Respondent/
Complainant
2.Crl.RC(MD)No.497 of 2007:-
Parthasarathy Babu : Revision Petitioner/
Appellant/A9
Vs.
The State rep. by Inspector of Police,
CBCID, Thanjavur. : Respondent/Respondent/
Complainant
http://www.judis.nic.in
2
3.Crl.RC(MD)No.511 of 2007:-
1.M.Rajagopalan (Died on 07.08.2017)
2.Venkatachalapathi
3.Mallika
4.Premakumari
5.Kalliamoorthy
6.Manoharan
7.Durairaj : Revision Petitioner/Accused/
A1, A5, A6, A7, A10, A12 and A14
Vs.
The State rep. by Inspector of Police,
CBCID, Thanjavur : Respondent/Respondent/
Complainant
Common Prayer: Criminal Revisions have been filed
under Section 397(1) r/w 401 of Criminal Procedure Code, against
the order passed in C.A.Nos.70 and 75 of 2006 on the file of the
Principal District-cum-Sessions Court, Thanjavur, dated 17.07.2007,
confirming the conviction and sentence passed in C.C.No.50 of
1988 on the file of the Chief Judicial Magistrate, Thanjavur at
Kumbakonam, dated 21.07.2006.
For Revision Petitioner
in Crl.RC(MD)No.
472 of 2007 : Mr.M.Michael Bharathi
For Revision Petitioners
in Crl.RC(MD)No.
479 of 2007 : Mr.K.Mahendran
For Revision Petitioners
in Crl.RC(MD)No.
512 of 2007 : Mr.AR.L.Sundaresan
Senior Counsel
for Ms.AL.Gandhimathi
For Respondent : Ms.M.Anantha Devi
(in all cases) Government Advocate
(Criminal side)
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COMMON J U D G M E N T
These criminal revisions have been filed against the Judgment passed in C.A.Nos.70 and 75 of 2006 on the file of the Principal District-cum-Sessions Court, Thanjavur, dated 17.07.2007, confirming the conviction and sentence passed in C.C.No.50 of 1988 on the file of the Chief Judicial Magistrate, Thanjavur at Kumbakonam, dated 21.07.2006.
2.The case of the prosecution is that A1 Rajagopal was working as Cashier in Cholan Roadways Corporation, Kumbakonam and 2nd accused Neethi Vilangan was the Junior Superintendent and the 3rd accused was the chief Accounts Officer and the 4th accused Ramanathan was the Chief Account and the 5th accused A.Kanickavasagan was the Junior Accounts Officer and the 6th accused R.Natarajan was the Senior Superintendent at the relevant point of time. The 7th accused is the brother of A1 and 8th accused is the wife of A1 and the 9th accused is the wife of A7. During the period between 01.01.1982 and 31.12.1982, A1 in criminal conspiracy with A2 to A9 has committed misappropriation of Rs. 16,60,498.17/- from Cholan Roadways Corporation. http://www.judis.nic.in 4
3.The further case of the prosecution is that A11 and A13 are the participants of Tender-cum-auction of the unused scraps and metals of Cholan Transport Corporation conducted in the year 1983, without depositing the EMD amount, participated in the auction and received EMD amount from the Transport Corporation with the help of A1 to A4 and A1 conspired with the remaining accused created documents by forging the signature of A11 and A13 and misappropriated the large amount.
4.In the trial court, on the side of the prosecution, 62 witnesses were examined and 3176 documents were marked. When the accused were questioned about the incriminating circumstances, they denied the same. On the side of the accused, 6 witnesses were examined and 219 documents were marked.
5.Crl.RC(MD)No.472 of 2007:- The revision petitioners/A11 and A13 are convicted and sentenced to undergo six years rigorous imprisonment and to pay a fine of Rs.30,000/-, in default to undergo one year simple imprisonment, each for the offences punishable under Sections 420 read with 34 IPC and Section 468 read with 34 IPC and to undergo six months rigorous http://www.judis.nic.in 5 imprisonment and to pay a fine of Rs.2,000/-, in default to undergo one month simple imprisonment, each for the offence punishable under Section 120(B) IPC and sentences are ordered to run concurrently. The same was confirmed by the Chief Judicial Magistrate, Thanjavur.
6.Crl.RC(MD)No.497 of 2007:- The revision petitioner/A9 is convicted and sentenced to undergo six years rigorous imprisonment and to pay a fine of Rs.30,000/-, in default to undergo one year rigorous imprisonment, each for the offences punishable under Sections 420 and 468 read with 34 IPC and to undergo six months rigorous imprisonment and to pay a fine of Rs. 2,000/-, in default to undergo one month simple imprisonment, each for the offence punishable order Section 120(B) IPC and the sentences are ordered to run concurrently. The same was confirmed by the Principal District and Sessions Judge, Thanjavur.
7.Crl.RC(MD)No.511 of 2007: The 1st petitioner/A1 convicted for the offences under Sections 409, 477-A, 420, 468 and 120-B of IPC and directed to undergo Rigorous Imprisonment for a period of six months and yo pay a total fine of Rs.1,22,000/-, in http://www.judis.nic.in 6 default to undergo simple imprisonment for one year for each offence. The petitioners 2 to 7/A5, A6, A7, A10, A12 and A14 are convicted and sentenced to undergo six years rigorous imprisonment and to pay a fine of Rs.30,000/-, in default to undergo one year simple imprisonment each for the offences punishable under Section 420 read with 34 IPC and Section 468 read with 34 IPC and to undergo six months of rigorous imprisonment and to pay a fine of Rs.2,000/- in default to undergo one month simple imprisonment each for the offence punishable under Section 120(B) IPC and the sentences are ordered to run concurrently. The same was confirmed by the Principal District and Sessions Judge, Thanjavur. Aggrieved by the Judgment of the courts below, the revisions petitioners are before this court with these revisions.
8.The Senior Counsel appearing for the revision petitioners in Crl.R.C.No.511 of 2007 argued that the courts below failed to see the fact that A1 to A6 are the officials of Cholan Roadways Corporation and their duty is to very and maintain the daily accounts on-day today basis and finalise the accounts and the duty of the Managing Director and General Manager of the Corporation to be under overall in charge of the administration; http://www.judis.nic.in 7 that the accounts of the Corporation were added on daily basis, weekly basis, monthly basis, quarterly basis and annually and at no point of time, any discrepancy or misappropriation was alleged as against A1 to A6; that the evidence of PW1 and PW2 did not advance the case of the prosecution and they were the Chairman and General Manager of the Corporation and had clearly spoken to the effect that the accounts were periodically seen by them and there was no flaw in the accounts at any point of time; that the courts below failed to see that PW1 had admitted that some anonymous letters have received and action initiated on the basis of the same and the said letter was also entrusted to the police, however, the said material evidence had been suppressed; that it is admitted by PW55 that he had not audited the accounts, but his juniors and partners, who had audited the accounts and given a report and as such, the evidence of PW55 is nothing but a hearsay and that the evidence of PW47 is only to the extent of friendship with A1, A2 and A7 and it does not prove the charges framed against them; that the evidence of PW49 is only to the effect of opening of bank account and the transactions in the said account and it is not a material value for implicating the accused and that the evidence of PW50 and PW51 are also no consequence as they http://www.judis.nic.in 8 have not scrutinised the accounts and there is no materiel placed before the court to substantiate the charge of criminal conspiracy as against the accused. In view of the above circumstances, he prays for acquitting the accused by allowing the criminal revisions
9.The learned counsel appearing for the revision petitioners/A11 and A13 in Crl.RC(MD)No.472 of 2007 submitted that according to the prosecution, the revision petitioners are participants of Tender-cum-Auction of the unused scraps and metals of Cholan Transport Corporation conducted in the year 1983 and without depositing the EMD amount, the revision petitioners participated in the auction and received EMD amount from the Transport Corporation with the help of A1 to A4 and A1 conspired with the remaining accused, created documents by forging the signature of the revision petitioners and misappropriated large amount; that both the courts below failed to properly appreciate the evidence and records and deviated from the charges framed against the revision petitioners and erroneously convicted the revision petitioners; that the prosecution did not establish the fact that necessary ingredients for convicting the revision petitioners under Section 34 of IPC and 120(B) IPC and that for convicting the http://www.judis.nic.in 9 petitioners under Section 34 IPC, the prosecution must establish the fact that common intention as well as overtact in furtherance of common intention and in this case, there is no whisper regarding the common intention as well as the overtract in furtherance of the common intention seen from the prosecution witnesses. Hence, he prays that the criminal revision has to be allowed by acquitting the revision petitioners.
10.On the other hand, the learned Government Advocate (Criminal side) appearing for the respondent State argued that the court below after analysing entire materials available on record, both oral and documentary, passed the judgment, which does not required any interference by this court and prays for the dismissal of the criminal revisions.
11.Heard both sides and perused the materials available on record.
12.In this case, PW1 to PW34 are the officials of Cholan Transport Corporation, Kumbakonam. A1 to A5 are also the officials of Cholan Transport Corporation, Kumbakonam. http://www.judis.nic.in 10
13.The case of the prosecution is that from 01.01.1983 to 02.11.1983, A1 received amount on different transactions on behalf of the Transport Corporation, but he has not properly paid the above amount into the account, but misappropriated Rs.16,60,498/- and used the misappropriated amount for his personal use and for that, all the other accused helped him.
14.PW1 deposed that the Transport Corporation determined the duties and responsibilities of A1 to A6 and from 01.01.1983 to 02.11.1983 on behalf of the Cholan Transport Corporation, deposits were received by the Tamil Nadu Transport Development Corporation and A1 received the above deposit amount and further he received the amount from Branch Offices and batta amount of the employees, but he failed to remit the above amount into the Bank and misappropriated the above amount and for that, all the other accused helped him and further, he received complaint as against A1 and he received records from the office and perused it and he found that A1 misappropriated to the tune of Rs.54,83,920/- and in order to recover the above amount, suit was filed and decreed and for committing misappropriation, complaint was given as against all the accused.
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15.PW2 to PW4 are also the officials of the Cholan Transport Corporation, Kumbakonam who spoke about the details of duties and responsibilities of the officials of the Corporation and further stated that A1received amount towards several transactions, but he has not properly brought into the account and created false documents, thereby misappropriated huge amount and for that, all other accused helped him.
16.In this case, PW56 and PW59 were working under the control of A1. On careful perusal of the evidence of PW56, it reveals that from 01.01.1983 to 02.11.1983 as per Exs.P927 to P2758, A1 received amount towards several transactions and paid only lesser amount into the Bank account instead of paying the received amount, thereby committed misappropriation. Further, PW56 stated that the misappropriated funds were deposited in the name of A5 to A8. The statement of A1, A5 and A8 were marked as Exs.P720 and P724 and the entries of the above amount were marked as Exs.P2759 to P2856.
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17.On careful perusal of Exs.P714, P717, P720, P724 and P2759 to P2856, it reveals that the amount, which were received by A1 was not properly deposited and only lesser amount was deposited and the remaining amount were deposited into the account of A5 and A8 on various dates by A1. Hence, the evidence of PW1 to P47 is corroborated with the evidence of PW56.
18.PW59 deposed that A1 received ticket receipts and falsely entered in the batta account and further, he made some corrections in the cash registers, thereby A1 committed misappropriation and caused loss to the Transport Corporation. To prove the above fact, Exs.P2862 to P2891 and P2893 to P3022 were produced on the side of the prosecution.
19.On careful perusal of the above documents, it shows that in the batta collection, A1 made false entries and corrections. Further, PW59 deposed that he made corrections in the petrol, diesel and expenditure registers. To prove it Exs.P3023 to P3055 were produced on the side of the prosecution. http://www.judis.nic.in 13
20.On careful perusal of Exs.P3023 to P3035, corrections were made in the registers kept for petrol, diesel expenditure. Further, on the side of the prosecution, it is stated that A1 received deposits in respect of the auction and whenever any person was not win in the auction, the amount deposited by the participants are returned to them and in the auction, A5, A9 to A14 have participated, but no deposit amount was paid by them and they are not winners in the auction, but the deposited amount was returned to them as if they have paid the advance amount before the auction. To prove it, PW35 was examined.
21.PW35 categorically deposed that during the period 1982-1983, auctions were conducted in Kumbakonam and Thanjavur depots and in the auctions, A5, A8, A9 and A14 were participated, but they have not deposited any amount and they were not the winners in the above auction and after the auction, A1 returned the amount to A5, A8, A9 and A14 as if they participated in the above auctions and thereby, A1 committed misappropriation. http://www.judis.nic.in 14
22.Further, it is seen from the records that to prove the misappropriation committed by A1 with the other accused, Exs.P13 to P293 were produced on the side of the prosecution. PW2 deposed with regard to the above fact.
23.PW35 deposed that the auction was conducted in the Cholan Transport Corporation and A5, A9 and A14 were the participated and the sale register was maintained by A1. To prove the fact that amounts were received by A5, A8 to A14 and deposited in their bank account, PW53 was examined. On careful perusal of the evidence of PW53, it reveals that A1 had committed misappropriation and the misappropriation amount were deposited in the bank account of A5, A8 to A14.
24.Further, PW57 deposed that from 14.02.1983 to 10.11.1983 the amounts received by A1 were deposited in the name of A5, A8 to A14. From the evidence of PW53, it reveals that from 14.02.1983 to 10.11.1983, how the account was opened in the name of A5, A8 to A14 and from their account whom issued cheque. http://www.judis.nic.in 15
25.PW47 deposed that A1, A5 and A14 are having accounts in the Canara Bank and from their account, amount was transferred to the Chit Company Account of PW47 and they are also the subscribers in the Chit Company. To prove the said fact, Ex.sP493 to P507 were marked on the prosecution side.
26.From the evidence of PW47, Exs.P493 to P507, it reveals that A1, A5 and A14 had money transactions with the Chit Company of PW47. Further it is proved that A1 constructed a house by using the misappropriated amount, PW48, PW50 and PW51 were examined and Exs.P493 to P703 were produced.
27.On careful perusal of the evidence of PW56, PW59 and other witnesses, it is seen that A1 by using his official capacity made false entries in the registers maintained by him and misappropriated the amount and thereby, caused loss to the Transport Corporation.
28.In this case, on the side of the accused, DW1 to DW6 were examined. DW1 to DW6 were already shown as PWS. http://www.judis.nic.in 16
29.It is admitted fact that DW1 to DW6 are the officials of Cholan Transport Corporation. DW1 to DW6 have not deposed that A1 paid the full amount received by him in a proper manner and already the prosecution witnesses spoke about the misappropriation committed by A1 and how the other accused are connected with A1. On the basis of the evidence of DW1 to DW6, this court is not come to the conclusion that A1 has not misappropriated the amount belonging to Cholan Transport Corporation. Hence, much importance cannot be given the the evidence of DW1 to DW6.
30.On careful perusal of the evidence and documents, A1 received amount in several transactions, but he has not properly entered in the records and he instead of entering the correct amount, A1 entered lesser amount and for that, the other accused helped him.
31.The learned counsel appearing for the accused argued that already weekly, monthly, annual audit was done in Cholan Transport Corporation and if really any misappropriation has been done, it would fine out immediately, but no misappropriation http://www.judis.nic.in 17 against A1 was found during the above audit report. Hence, A1 has not committed any misappropriation and hence, all the accused are entitled to acquittal.
32.In this case, it is stated by PW53 and PW56 that the misappropriation done by A1 was found only after 12.11.1983 during audit from 01.04.1970 to 12.11.1983. Hence, from the evidence of PW53 and PW56, it reveals that only after detailed enquiry by PW52 and PW56, the misappropriation was found. Hence, the argument put forth on the side of the accused stating that at the time of annual audit, it was not found that no misappropriation was committed by A1 is not at all acceptable.
33.Further, on the side of the accused, it is stated that already the Cholan Transport Corporation filed a suit for recovery of money against the accused and hence, the accused are entitled for acquittal. It is to be noted here that civil remedy and criminal remedy are entirely two different remedies and they cannot go by simultaneously.
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34.In this case PW2 to PW19, PW20, PW34, PW49, PW35 to PW41, PW42 to PW48, PW50 to PW56 have categorically stated the kinds of misappropriation committed by A1.
35.On careful perusal of Exs.P182 and P183, it is seen that A1 issued a receipt as if A1 remitted Rs.30,000/- and A5 was not the winner and the alleged amount of Rs.30,000/- was ordered to be returned to A5 and in that receipt, PW2 has signed and the bill was prepared by A15 and pass order was issued as per Ex.P185 and the amount was issued through Canara Bank cheque.
36.Further, from Exs.P189 to P293, it reveals that A8 to A11 and A14 deposited each Rs.30,000/- for participating in the auction and they are not the winners and it was ordered to return the deposit of Rs.30,000/- each as if the above amount was deposited by them and they were returned to A8 to A11 and A14 by way of Canara Bank cheque and the same was corroborated by PW2. Hence, it clearly shows that without depositing any amount towards advance, A1 issued cheque to A8 to A11 and A14 as if the above accused were participated in the auction and they are not winners and hence, they are entitled to the above amount and http://www.judis.nic.in 19 received the amount. Hence, it reveals that A8 to A11 and A14 also liable for the misappropriation done by A1, since they received the amount deposits by way of cheque and they en-cashed the cheque and they have not opposed the transactions done through their Banker.
37.Further, it is admitted on the side of the accused that A5, A9 to A14 are close relatives and friends of A1. A5, A9 to A14 have not given any complaint stating that with their consent, A1 falsely created the deposit receipt and received the deposit amount as if they were not successful winners and falsely issued cheque from them. Hence, it reveals that A1, A9 to A14 also responsible for the misappropriation done by A1. Hence, it is held that A4, A9 to A14 with a common intention joined with A1 and misappropriated the amount deposited amount.
38.At this juncture, it is necessary to refer Sections 407 and 409 IPC, which would run thus:-
“407.Criminal breach of trust by
carrier, etc.—Whoever, being entrusted with
property as a carrier, wharfinger or warehouse- http://www.judis.nic.in 20 keeper, commits criminal breach of trust, in respect of such property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
409.Criminal breach of trust by public servant, or by banker, merchant or agent-Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
39.Further the learned counsel for the accused argued that it is a case of misappropriation and all the accused are suffering from various ailments and if the court found guilty of the accused, they may be given lesser punishment. For that, the learned Senior counsel submitted the following rulings:-
1.(1973)2 SCC 213 (Shri Durga Dass Vs. State of Himachal Pradesh;
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2.(1972)1 SCC 326 (Jagdish Prasad Alias Jagdish Prasad Gupta Vs. State of West Bengal);
3.(2016)3 SCC (Cri) 286 (K.P.Singh Vs. State (NCT of Delhi).
40.The trial Court as well as the First Appellate Court after considering all these aspects given a concurrent finding, which does not require any interference by this court.
41.It is seen from the records that A1/M.Rajagopalan died on 7.08.2017 and A11/Palanivelu reported to be dead. Hence, the charges against A1/Rajagopalan and A11/Palanivelu are abated.
42.This court, after going through the records, is of the considered view that the court below have not committed any mistake or error in rendering a finding hold guilty of the offence with which they stood charged. However, considering the fact that A5 to A7, A9, A10 and A12 to A14 are the senior citizens and pendency of the case for three decades, this court finds that the conviction and sentence imposed on the A5 to A7, A9, A10 and A12 to A14 by the courts below require modification. http://www.judis.nic.in 22
43.In the result, these criminal revisions are partly allowed. The conviction and sentence imposed on A5 to A7, A9, A10, A12 to A14 are modified and they are convicted and sentenced to suffer 6 months RI for each offence. The fine amount imposed by the trial court for the said offences are confirmed. The period of sentence, if any, already undergone by A5 to A7, A9, A10, A12 to A14 shall be given set off under Section 428 Cr.P.C and they are, after adjusting the period of imprisonment already undergone, shall undergo imprisonment for the remaining period.
30.10.2018 Index:Yes/No Internet:Yes/No er http://www.judis.nic.in 23 To,
1.The Inspector of Police, CBCID, Thanjavur.
2.The Principal District-cum-Sessions Judge, Thanjavur.
3.The Chief Judicial Magistrate, Thanjavur.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 24 T.KRISHNAVALLI,J er Crl.R.C(MD)Nos.472, 479 and 511 of 2007 30.10.2018 http://www.judis.nic.in 25 http://www.judis.nic.in