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A. Subramani Vs. Inspector of Police Vigilance and Anti-Corruption, Salem - Court Judgment

LegalCrystal Citation
CourtChennai High Court
Decided On
Case NumberCrl.R.C.No. 260 of 2016 & Crl.M.P.No. 1799 of 2016
Judge
AppellantA. Subramani
RespondentInspector of Police Vigilance and Anti-Corruption, Salem
Excerpt:
.....and forgery conviction - father of a.1 on knowing that the loan was sanctioned and said loan amount was misappropriated by accused, and order to pacify a.1's father, a.1, a.2 and a.4 with active assistance and connivance of each other prepared another false document viz., 'no due certificate' as if loan amount was cleared pledged by a.1's father to co-operative society without actually clearing said loan - a.1 and a.5 forged signature of a.1's father on installments of cheque and had thus committed offence under section 13(2) r/w 13(1)(c)and(d) of the act, 1988 trial court convicted appellants hence instant appeal issue is whether order of special judge convicting petitioner is maintainable court held - it is the stand of respondent /complainant that materials..........one including the insufficiency of evidence to prove the charge. of course while framing necessary charges, the trial court is to apply its judicial thinking mind to the facts of the given case because of the essential ingredients of the offence for which a person / accused is sought to be charged. the acid test for deciding whether the charges should be considered to be a groundless is that where the materials are such that even if they are left unrebutted, that would make out no case whatsoever. even a very grave suspicion founded on materials before the trial court is adequate enough for framing charges. 26. suffice it for this court to make a significant mention that the evaluation of the evidence collected / marshaled by the respondent / prosecution can only be undertaken at the.....
Judgment:

(Prayer: Petition filed under Section 397 r/w 401 of Cr.P.C., to set aside the order dated 05.11.2015 made in C.M.P.No.116 of 2014 in Spl.C.C.No.102 of 2014 on the file of the Learned Special Judge (Special Court for Trial of Cases, under Prevention of Corruption Act), Salem, by allowing this Petition.)

1. Heard the Learned Counsel appearing for the Petitioner / A.2 and the Learned Additional Public Prosecutor appearing for the Respondent.

2. The Petitioner / A.2 has preferred the present Criminal Revision Petition before this Court, (as an aggrieved person) as against the Order dated 05.11.2015 in Crl.M.P.No.116 of 2014 in Spl.C.CNo.102 of 2014 on the file of Learned Special Judge, (Special Court for Trial Cases, under Prevention of Corruption Act) Salem.

3. The Learned Special Judge, (Special Court for Trial of Cases under the Prevention of Corruption Act) Salem on 05.11.2015 in Crl.M.P.No.116 of 2014 in Spl.C.C. No.102 of 2014 at Paragraph No.18 had observed the following:-

18. In the present case the materials placed by the Investigating Officer along with the Final Report prima facie disclose grave suspicion against the petitioner of having committed the offences alleged in the Final Report. Hence by applying the ration laid down by our Apex Court in the case referred supra this Court decides that there is no merit in the application and that the petitioner is not entitled for an order of discharge as prayed for. and ultimately dismissed the Criminal Miscellaneous Petition. 4. According to the Learned Counsel for the Revision Petitioner / A.2, the Impugned Order of the trial court in Crl.M.P.No.116 of 2014 in Spl.C.C.No.102 of 2014 dated 05.11.2015 is against Law, Weight of Evidence and all probabilities of the case.

5. The Learned Counsel for the Petitioner urges before this Court that the trial court had failed to consider that the police officer, who registered the case had conducted the investigation in the present case and filed a final report, which is not correct in the eye of Law. The Learned Counsel for the Petitioner proceeds to project an argument that the trial court had filed to appreciate the contention of the Petitioner that without conducting an enquiry as specified under Section 81 of the Tamilnadu Co-operative Societies Act in respect of purported irregularities committed in the Housing Society the present Criminal Proceedings had been launched and therefore, the whole proceedings is bad in the eye of Law.

6. Advancing his arguments, the Learned Counsel for the Petitioner vehemently takes a plea that the trial court had failed to appreciate that since the Petitioner had attested disputed signature of A.6 in the cheques in question, in the natural course of discharge of his duty without any malafide intention, the Petitioner cannot be implicated under any of the offences mentioned in the Final Report more so when there is 'No Iota of Evidence' available on record to establish the alleged criminal conspiracy hatched up by all the accused.

7. The Learned Counsel for the Petitioner contends that 'There is no Iota of evidence' found in the charge to attract the ingredients of Sections 120(b) r/w 167, 409, 419, 420, 465, 467, 468, 471, 477(A) and 109 IPC and also the provision of Section 13(2) r/w 13(1)(c)and(d) of the Prevention of Corruption Act, 1988.

8. The Learned Counsel for the Petitioner brings it to the notice of this Court that the impugned order passed by the trial court in Crl.M.P.No.116 of 2014 in Spl.C.C.No.102 of 2014 suffers from non application of mind and also the said order is a non-speaking one. Therefore on these two grounds, the impugned order suffers from legal infirmities.

9. In response, the Learned Additional Public Prosecutor for the Respondent / Complainant submits that it is the case of the Respondent / Prosecution that A.1, namely, R.Parameswaran fabricated the records as if his father M.Ramalingam received the loan amount of Rs.4,50,000/- (Rupees Four Lakhs and Fifty Thousand only) on having pledged his house site entered under Document No.539 of 2002 and pledged to the Bharath Rathna Dr.MGR House Building Cooperative Society, Salem under Registered Document No.2354 of 2004 dated 20.08.2004 in Joint Sub-Registrar-IV, Salem (vide Housing Loan file No.21/2004-2005)

10. The Learned Additional Public Prosecutor for the Respondent proceeds to state that A.2 (Spl. Officer of the Society) had sanctioned the loan for a sum of Rs.4,50,000/- (Rupees Four Lakhs Fifty Thousand only) in favour of M.Ramalingam, father of A.1 and first installment of Rs.3,32,500/- (Rupees Three Lakhs Thirty Two Thousand and Five Hundred only) was sanctioned on 20.08.2004. Furthermore, it is represented that after deducting Rs.33,250/- (viz., 7% of the total loan amount as share) a Cheque No.J198102 (Document 10) was issued for a sum of Rs.2,99,250/- (Rupees Two Lakhs Ninety Nine Thousand Two Hundred and Fifty only).

11. The Learned Additional Public Prosecutor for the Respondent brings it to the notice of this Court that Accused No.1 forged the signature of his father M.Ramalingam and encashed the cheque. Also he had signed in the cheque and received the amount. Moreover, A.2 had falsely certified on the backside of the aforesaid cheque that M.Ramalingam had signed in his presence.

12. Expatiating his submission, the Learned Additional Public Prosecutor for the Respondent submits that, similarly a sum of Rs.1,42,500/- (Rupees One Lakh Forty Two Thousand and Five Hundred only) was sanctioned by A.2 on 01.09.2004, as 2nd installment. Here also, a sum of Rs.1,150/- (Rupees One Thousand One Hundred and Fifty only) was deducted towards interest in respect of the 1st installment loan, Cheque No.198104 (Document 11) was issued for Rs.1,41,350/- (Rupees One Lakh Forty one Thousand Three Hundred and Fifty only) in the name of one S.Ramalingam (Instead of M.Ramalingam). However, this cheque was recorded in the Loan Disbursement Register as if it was disbursed to A.1's father M.Ramalingam. As a matter of fact, this cheque, was encashed by C.Ramu (A.5) in the presence of A.1 by forging the signature as S.Ramalingam and received the amount by signing in the cheque. That apart, knowing this act of forgery Accused No.2 had signed in the backside of the cheque to certify the signature was that of S.Ramalingam. Also that, A.3 (Manivannan) had made false entries in the concerned records knowing very well of the aforesaid malpractice and forgery in both these cheques. In effect, the stand of the Respondent / Complainant is that the accused in connivance with each other had misappropriated Rs.4,40,600/- (Rupees Four Lakhs Forty Thousand and Six Hundred only) (Rs.2,99,250+1,41,350/-) and cheated M.Ramalingam.

13. Besides the above, an equivocal stand taken on behalf of the Respondent is that in Loan File No.21/2004-2005, the Secretary, Spl. Officer, the Loan Applicant M.Ramalingam and the guarantor had not signed in the relevant documents such as Loan Application, Indemnity Bond, Group Insurance Application, Resolution, Loan Sanction Note, Membership Register etc., Apart from that A.1, A.Subramaniam and A.3, Manivannan had issued the loan without signatures of the aforesaid individuals and without transmitting the application to the Tamilnadu Cooperative Housing Federation, Chennai.

14. The core contention projected on the side of the Respondent is that M.Ramalingam (Father of A.1) on knowing that the loan of Rs.4,75,000/- (Rupees Four Lakhs Seventy Five Thousand only) was sanctioned and the said loan amount was misappropriated by the accused, he quarreled with them and order to pacify the said M.Ramalingam, A.1, A.2 and A.4 with active assistance and connivance of each other prepared another false document viz., 'No Due Certificate' dated 09.03.2006 as if the loan amount of M.Ramalingam was cleared and also return the original document to M.Ramalingam pledged by him to the Co-operative Society without actually clearing the aforesaid loan. Moreover, in the Loan Ledger Book and other records of the Co- Operative Society, the relevant entries as regards the clearance of loan was not entered into and further that A.1 and A.5 had forged the signature of M.Ramalingam on the 1st and 2nd installments of the cheques.

15. As regards the plea that the Respondent / Complainant must obtain sanction by adhering to ingredients of Section 197 of Cr.P.C., and under Section 19(1) of the Prevention of Corruption Act, 1988 to the charges levelled against the Petitioner (A.2 - Public Servant), it is the stand of the Respondent / Complainant that admittedly, the Petitioner / A.2 had retired from service on 30.06.2007 and as on date of cognizance of the offence being taken by the trial court, the Revision Petitioner/ A.2 ceased to be a Public Servant and as such, 'The prior Sanction for Prosecution' is not required.

16. To fortify the contention that no previous sanction of competent authority is required under Section 197 of Cr.P.C., in respect of an offence of cheating etc., on the side of the Respondent / Complainant, a reliance is placed on the decision of Hon'ble Supreme Court Om Kr.Dhankar V. State of Haryana and Another reported in 2012 (2) CTC 871.

17. Insofar as the aspect of the Police Officer, who registered the case is taking up the investigation and submitting a final report, the Learned Special Public Prosecutor for the Respondent / Complainant strenuously contends that the Police Officer, who lodged the FIR can investigate and submit a Final Report as per decision of Hon'ble Supreme Court State by Inspector of Police, Vigilance and Anti- Corruption, Thiruchirappalli, Tamilnadu V. Jayapaul reported in AIR 2004 SC 2684. Also it is the argument of the Learned Additional Public Prosecutor for the Respondent / Complainant that Section 81 of the Tamilnadu Co-operative Societies Act, 1983 does not deal with the Criminal Offence committed by the Employees of the Society and in fact there is no impediment for the Respondent / Police to investigate the cognizable offence committed by an employee, in respect of the Society.

18. The Learned Additional Public Prosecutor for the Respondent submits that the Impugned Order passed by the trial court in C.M.P.No.116 of 2014 in Spl.C.C. No.102 of 2014 is a speaking order and the contra plea taken on behalf of the Petitioner / A.2 is not a correct one. Also it is represented on behalf of the Respondent that there are enough oral and documentary evidence / materials available on record to frame necessary charges against the Petitioner / A.2 in respect of the offence mentioned in the final report.

19. The Learned Additional Public Prosecutor for the Respondent relies on the decision of the Hon'ble Supreme Court Shoraj Singh Ahlawat and Others V. State of U.P. and Another reported in AIR 2013 Supreme Court at Page 52 and at Spl. Page 55 at Paragraph No.11, it is interalia observed as follows:

..... The ambit of Section 239 Cr.P.C., and the approach to be adopted by the Court while exercising the powers vested in it under the said provision fell for consideration of this court in Onkar Nath Mishra and Ors. V. State (NCT of Delhi) and Anr. (2008) 2 SCC 561 : (AIR 2008 SC (Supp) 204 : 2008 AIR SCW 96). That too was a case in which a complaint under Sections 498-A and 406 read with Section 34 of the I.P.C., was filed against the husband and parents-in-law of the complainant-wife. The Magistrate had in that case discharged the accused under Section 239 of Cr.P.C., holding that the charge was groundless. The complainant questioned that order before the Revisional Court which directed the rial Court to frame charges against the accused persons. The High Court having affirmed that order, the matter was brought up to this Court. This Court partly allowed the appeal qua the parents-in-law while dismissing the same qua the husband. This Court explained the legal position and the approach to be adopted by the Court at the stage of framing of charges or directing discharge in the following words:

'11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence.

20. Lastly, it is the submission of the Learned Additional Public Prosecutor for the Respondent that Petitioner / A.2 is charged under Sections 120(b) and 109 of Indian Penal Code and in fact the trial court had reached a correct conclusion that the Final Report raises a great suspicion against the Petitioner for having committed the offence in question.

21. At this stage, this Court on perusal of records finds that the Petitioner / A.2 had filed Crl.M.P.No.116 of 2014 in Spl.C.C.No. 102 of 2014 on the file of the trial court (under Section 239 of Cr.P.C.) praying to discharge him from the case. Also this Court in the Petition in C.M.P.No.1388 of 2011 in Spl.C.C.24 of 2011 finds that the Petitioner had averred at Paragraph No.XXIV that the investigation agency had stooped to the level of filing a charge sheet with legal anomalies of himalayan heights on an investigation hastened with capricious tendency, etc., Moreover, it is the plea of the Petitioner in Crl.M.P.No.1388 of 2011 (Before the trial Court) that the charge sheet does not speak of any incriminating evidence or document against him. Continuing further, according to the Revision Petitioner, the entire transaction in respect to the work undertaken was performed in terms of ingredients of Act, Rules and Bylaws, besides in accordance with the Government Orders by A.3 (Former Secretary of the Society).

22. At this juncture, a cursory perusal of the Paragraph No.XXII of the averments made in Crl.M.P.No.1388 of 2011 (Filed by the Petitioner) shows that the Accused No.3 was the Paid Secretary of the Society, who was responsible for the day to day administration and transactions of the Society, as per Duties and Responsibilities. Also it is clear cut stand of the Petitioner that the Paid Secretary was the Chief Executive of the Society as per Section 84 of the Tamilnadu Cooperative Societies Act, 1983. Furthermore, the Revision Petitioner / A.2 was protected under the ingredients of Section 176 of Tamilnadu Co-operative Societies Act, 1983. Therefore, the crystalline stand of the Petitioner / A.2 is that the Respondent / Complainant based on groundless reasons had laid a charge sheet against him. Also it is the version of the Petitioner that none of the oral and documentary evidence point out that he was entrusted with day today affairs and transactions and as such, Section 409 of IPC is not attracted.

23. The Revision Petitioner also in Crl.M.P.No.1388 of 2011 (Before the trial court) had taken a categorical plea that he being a Public Servant, a prior sanction under Section 197 Cr.P.C., and under Section 19(1) of Prevention of Corruption Act,1988 was to be obtained from the Head of the Department and the absence of the same is fatal to the Respondent / Complainant's side.

24. At the outset this Court quite pertinently points out that an obligation to discharge an accused in terms of Section 239 of Cr.P.C., will come to operative play when the trial court considers the charges levelled against him to be a groundless one. It cannot be gainsaid that at the time of framing of charges, no detail evaluation of the materials is to be undertaken by a trial court and even the possible defences need be taken into consideration. When there are exfacie materials to frame necessary charges against the Petitioner / Accused then, the charge cannot be said to be a groundless and frivolous one. It is enough that if there is a grave suspicion against an accused, then, the trial court is entitled to take a view that there is a ground for presuming that the accused has committed the offence. In short, if there is a strong suspicion necessary charges should be framed against the accused, as opined by this Court.

25. For the purpose of framing necessary charges or discharging an accused, as the case may be, the materials produced by the Respondent/Complainant will have to be accepted as correct. Whatever may be the outcome of the main case, especially after trial. It cannot be forgotten that the 'Ground' may be a valid one including the insufficiency of evidence to prove the charge. Of course while framing necessary charges, the trial court is to apply its judicial thinking mind to the facts of the given case because of the essential ingredients of the offence for which a person / accused is sought to be charged. The acid test for deciding whether the charges should be considered to be a groundless is that where the materials are such that even if they are left unrebutted, that would make out no case whatsoever. Even a very grave suspicion founded on materials before the trial court is adequate enough for framing charges.

26. Suffice it for this Court to make a significant mention that the evaluation of the evidence collected / marshaled by the Respondent / Prosecution can only be undertaken at the time of trial of the case. After all, the trial court is only to make its mind to frame necessary charges or discharge the accused. At that point of time, the materials placed would not have the 'Status of Evidence.'

27. As far as the present case is concerned, the Petitioner / A.2 retired from service on 30.06.2007. However, the charge sheet in the present case was filed on 29.07.2011 before the trial court. As on date of filing of the charge sheet, namely on 29.07.2011, the Petitioner was no longer in service of the Co-operative Housing Society and as such, this Court unhesitatingly comes to a resultant conclusion that there is no need / necessity to obtain any prior sanction from the Competent Authority to prosecute the Petitioner in respect of an offence under the Prevention of Corruption Act. Furthermore, in respect of an offence coming within the purview of Prevention of Corruption Act, 1988, G.O.Ms.No.269 of Personnel and Administrative Reforms (Per-N) Department dated 04.06.1990 of the Government of Tamilnadu confers power on the Police Officers of the Directorate of Vigilance and Anti- Corruption to register the case and investigate the same. Viewed in that perspective, the contra plea taken on behalf of the Petitioner / A.2 has no legs to stand in the eye of Law, in the considered opinion of this Court.

28. Insofar as the applicability under Section 197 of Cr.P.C., is concerned, the specific stand of the Respondent / Complainant is that the ingredients of Section 197 of Cr.P.C., do not extend to the offence of pertaining Misappropriation, Forgery, Cheating etc.,

29. In regard to the other purported forged signature of A.6 in the two cheques in question whether there was malafide intention or otherwise, this Court is of the earnest view that the same could be looked into by the trial court at the time of final hearing of the main case in Spl.C.C.No.120 of 2014 wherein the oral and documentary evidence could be let in / adduced by the respective parties. It is not out of place for this Court to make a pertinent mention that at the time of framing necessary charges, it is not for the trial court to look into probative value of the material on record only a primafacie is to be seen by the trial court. Even the trial court is not expected to ponder over or ruminate over the materials / collected / gathered by the prosecution to the effect that the same if taken together would result in conviction or his acquittal.

30. In the light of the detailed and qualitative discussions and also this Court taking note of the fact that it is the stand of the Respondent / Complainant that the materials submitted by the prosecution will establish the case of the Petitioner / A.2 and also this Court keeping in mind the entire conspectus of the attendant facts and circumstances of the present case in a cumulative fashion comes to an inefficacious and irresistible conclusion that the exfacie / prima facie there are available materials on record to frame necessary charges against the Petitioner / A.2 in the present case in Spl.C.C.No.120 of 2014 on the file of the trial court. In fact the materials gathered / collected by the prosecution at this stage, by no stretch of imagination can be considered to be a groundless one. Also this Court on going through the Impugned Order of the trial court dated 05.11.2015 in Crl.M.P.No.116 of 2014 is of the considered view that the same is free from any flaw. Consequently, the Criminal Revision Petition fails.

31. In the result, the Criminal Revision Petition is dismissed. Resultantly, the order dated 05.11.2015 in Crl.M.P.No.116 of 2014 in Spl.C.C.24 of 2011 passed by the Learned Special Judge, (Special Court for Trial of Cases under Prevention of Corruption Act) is confirmed by this Court, of course, for the reasons assigned in this Criminal Revision Petition.

32. Before parting with the case, this Court abundantly makes it quite clear that the dismissal of the present Criminal Revision Petition would not preclude the Petitioner / A.2 to raise all factual and legal pleas / defences available to him, of course in the manner known to law and in accordance with Law, if he is so desires or advised. Consequently, connected Miscellaneous Petition is closed.


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