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Seeking to abort the final report in C.C.No.10 of 2021 on the file of Judicial Magistrate No.II, Pudhukottai, the present Criminal Original Petition is filed by the accused 2 and 3.

2. The case of the prosecution in a nutshell is as follows. 2.1. The Tamil Nadu Marketing Federation [ hereinafter referred as 'TANFED'] having its headquarters in Chennai is a State level Co-operative Agency which supplies various kinds of fertilizers to the farmers at subsidized rates through Regional Offices functioning at every District where from fertilizers are being sent to all the Primary Agricultural Societies. The farmers purchase the fertilizers from the Primary Agricultural Societies either by cash or on credit basis. TANFED is also having its registered office and godown at Pudhukottai District. The first petitioner (A2) was working as a senior assistant for the period https://www.mhc.tn.gov.in/judis  Crl.O.P.(MD)No.12889 of 2021 from 09.02.2011 to 02.05.2011 at Pudhukottai TANFED. The second petitioner (A3) was an internal auditor for the period from 04.08.2011 to 31.03.2012 at Pudhukottai Regional Office. Both of them are responsible for receiving fertilizers from various suppliers and to dispatch the same to Primary Co-operative Credit Societies as and when required. They would also collect money for the sales made by them. The second petitioner (A3) is expected to conduct audit periodically and also monitor the sales and purchases. Thereafter, he should remit the sale proceeds and report the same to the authorities concerned. An inspection was conducted in the godown for the period 01.04.2011 - 31.03.2012 and it was found that there was a deficit of stock of 25 metric tons of fertilizers causing loss to TANFED to the tune of Rs.2,82,500/-. In fact, both the petitioners had falsely claimed a sum of Rs.23,115.75/- towards lorry charges and towards loading and unloading of fertilizers without actually sending the fertilizers to Primary Co-operative Credit Societies. Thus, they have caused loss to TANFED to the tune of Rs.3,05,615.75/-. They have not also maintained transportation receipts and receipts for labour charges. They did not also verify the physical stock then and there. Therefore, the https://www.mhc.tn.gov.in/judis  Crl.O.P.(MD)No.12889 of 2021 Deputy Registrar (Full Additional Incharge), combined Co-operative Enclave, Annavasal Road, Pudhukottai lodged a complaint with the Inspector of Police, CCIW-CID, Pudhukottai against the present petitioners and one Duraisamy (A1), which was registered as FIR in Crime No.1/2021 for the alleged offences punishable under Sections 408, 467, 468, 471, 477A read with 34, 109 IPC. The Inspector of Police, CCIW - CID, Pudhukottai after conducting investigation laid a final report before the Judicial Magistrate No.II, Pudhukottai in C.C.No.10 of 2021 against the accused for the offences punishable under Sections 408, 467, 468, 471, 477A, 34, 201, 255 and 120B IPC.

3. Mr.S.Malaikani, learned counsel appearing for the petitioners would contend that the Stock Verification Statement of Chemical Fertilizers by one Thiru.Neelavannan, Co-operative Audit Officer shows that there was no deficit in the stock as on 31.03.2012 and this aspect has not been considered by the Investigation Officer. His further contention is that though the alleged occurrence took place during the period between 01.10.2011 and 31.10.2011, First Information Report has been https://www.mhc.tn.gov.in/judis  Crl.O.P.(MD)No.12889 of 2021 registered belatedly in the year 2021 and it is also contrary to the proceedings initiated under Section 81 of the Tamil Nadu Co-operative Societies Act [hereinafter referred as 'the Act' in short]. According to him, there was no actual loss to the defacto complainant (the second respondent). It is his further submission that there are no ingredients to attract the provisions under Sections 408, 467, 468, 471, 477A, 34, 201, 255 and 120B IPC. He also drew the attention of this Court to the Domestic Enquiry Report conducted by the enquiry officer and contended that there was no shortage of fertilizers as alleged by the prosecution. His next contention is that this Court had quashed the surcharge proceedings under Section 87 of the Act in W.P.(MD)Nos.16723, 16729 and 16731/2019 dated 15.07.2020 on the ground that surcharge proceedings are initiated after the expiry of 7 years. He also relied on the decision of this Court in Crl.O.P.(MD)Nos.20896 to 20901/2018 dated 02.03.2022 wherein a single Judge of this Court, Hon'ble Mr.Justice G.Ilangovan, had held that when the Internal Auditor was holding additional incharge for more than three societies, lapse on the part of godown keeper cannot be attributed to him. According to him, since the present petitioners were https://www.mhc.tn.gov.in/judis  Crl.O.P.(MD)No.12889 of 2021 not directly involved in the commission of offence and they were in supervisory cadre, they cannot be fastened with criminal liability.

5. The first petitioner (A2) was working as a senior assistant at Pudhukottai TANFED and the second petitioner (A3) was working as an https://www.mhc.tn.gov.in/judis  Crl.O.P.(MD)No.12889 of 2021 internal auditor at Pudhukottai Regional Office. Though they were holding additional charge in TANFED during the relevant period, they were given the important posts of receiving fertilizers from various suppliers and to dispatch the same to Primary Co-operative Credit Societies as and when required. Once supply is made, they are supposed to collect money for such sales and to monitor and audit periodically. They are also expected to remit the sale proceeds and report before the concerned officers of TANFED. According to the prosecution, they failed to do so and in connivance with A1 and with the common intention of committing fraud, all the accused including the present petitioners caused monetary loss to TANFED. The main contention of the learned counsel appearing for the petitioners is that since the petitioners were given additional charge, they cannot be held responsible for the deficit found in the stock of fertilizers. It is also his submission that as per the Stock Verification Statement of Chemical Fertilizers by one Thiru.Neelavannan, Co-operative Audit Officer, there was no deficit in the stock as on 31.03.2012. At this juncture, it is pertinent to point out that the inspection was conducted for the period 01.04.2011 - 31.03.2012 https://www.mhc.tn.gov.in/judis  Crl.O.P.(MD)No.12889 of 2021 and deficit of 25 metric tons fertilizers was found. However, the Stock Verification Statement of Chemical Fertilizers as on 31.03.2012 was taken up on 20.04.2012 and 21.04.2012 and this has no relevance to the present case. In fact, the occurrence took place 8 months prior to the audit report.