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In Re: T.S. Swaminathan and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported inAIR1945Mad284; (1945)1MLJ449
AppellantIn Re: T.S. Swaminathan and anr.
Excerpt:
- - with reference to the general question of misappropriation of fines, he has a good deal to say. stewart's enquiry and he closes his statement by suggesting that not only the first appellant but also his successors shut their eyes to the failure of the second appellant to enter the properties in the property register, apparently in order to give the second appellant an opportunity to make the matters good......of the embezzlement cases from a different angle and eventually led to the formulation of charges of conspiracy between the joint magistrate and the clerk to defraud the government.4. the second appellant begins his statement by saying that he wishes to make a clean breast of the whole affair in ' the muddle created between ' himself and the first appellant, that after being in jail for six months and having gone through the whole question very calmly he was convinced that his statement would relieve his heart. he then goes on to refer to eleven items of misappropriation, five of which were then pending enquiry before the magistrate. with reference to those five (which include the major items in the present charges) he says that he would say nothing because they are sub judice......
Judgment:

Wadsworth, J.

1. These appeals arise out of a case of alleged conspiracy to defraud the Government by misappropriation of magisterial fines case properties and other funds and to falsify registers, records and accounts in o'rder to conceal the defalcations committed in pursuance of this conspiracy. The appellant in Criminal Appeal No. 648 who will be referred to as the first appellant if a member of the Indian Civil Service who was during the relevant period Sub-Collector and Joint Magistrate of Rajahmundry. The appellant in Criminal Appeal No 826 who will be referred to as the second appellant, was his magisterial clerk. The first appellant at the time of the alleged conspiracy was an officer of more than twelve years' service drawing a pay of approximately Rs. 1,600 per mensem The second appellant was a senior clerk on a pay of Rs. 58. The period covered bv the conspiracy according to the charge is from 1st January, 1940, to the 17th April 1942. The first appellant was posted to Rajahmundry on 13th July 1900 About two months later the second appellant was transferred to serve under the first appellant and he became magisterial clerk and also had charge of the suits work On 10th October, 1940, the first appeHant went on leave but was reposted to Raiahmundry when he returned on the 26th December, 1940. During his absence Mr. Dass, a junior officer of the Indian Civil Service acted for him. It is in evidence that on the 9th October, 1940, just before he went on leave, the first appellant wrote to his bank asking them to transfer Rs. 2,000 to the credit of his account with its head office at Madras and also to close the account after waiting for cheques already issued to be met. It is suggested that this is an indication that the first appellant did ndt expect to return to Rajahmundry at the end of his leave. Whether that is true or not, it is an indication that he was not apparently in any financial difficulties at the time. It is to be remarked that the total of the misappropriations for which the appellants are alleged to have been jointly responsible up to that date was under Rs. 300.

2. The first appellant after his return return to Rajahmundry seems to have fallen out with the local Circle Inspector, Kameswara Rao Naidu. The first appellant espoused the cause of one Manepalli Stiryanarayana who is P W 111 P.W. 111 was locked up by the police. He was released by the first appellant and 'after his release he filed a complaint against the Circle Inspector and the Sub-Inspector of Police. The police retaliated by making allegations against the first appellant, not only in connection with P.W. 111 's affair but also generally about the relations of the first appellant with the people of his division and his alleged official misdeeds. The charges were so serious that Mr. Stewart, Commissioner of Land Revenue, came to Rajahmundry and held an inquiry during the months of January and February, 1942. Mr. Stewart's reportis not in evidence, but it is common ground that the first appellant was exonerated. The Circle Inspector was transferred and he plays no further part in the present proceedings. It is alleged that the second appellant assisted the first appellant in getting the evidence ready and looking after the witnesses for Mr. Stewart's inquiry.

3. The first appellant was transferred to Chingleput in April, 1942. He was succeeded by Mr. Wood who was himself transferred on 8th August, 1942. There were thereafter several changes in the tenure of the office of the Sub-Divisional Magistrate and the second appellant himself was transferred on the 18th December, 1942. After his departure the then Sub-Divisional Magistrate Mr. Virabhadrayya, F.W. 125, received numerous complaints which led to the discovery of a series of embezzlements of moneys and properties received into the Court of the Joint Magistrate. He reported to the police and his successor Mr. Uthandarama Pillai, P.W. 127 investigated the matter further and laid a series of complaints before the police. The second appellant took leave and did not rejoin, sending successive applications for further leave which were refused. He was eventually arrested and convicted of absenting himself from duty and various charges of embezzlement were formulated as the facts were discovered. In the latter half of August when the second appellant was in the Sub-Jail, the Circle Inspector, P.W. no, interviewed him with reference to the embezzlement charges under investigation. On the 22nd August, the Circle Inspector requested the Sub-Divisional Magistrate to record a confessional statement from the second appellant. That confessional statement is Ex. GGG-3 which was actually recorded on the 2nd September. It is this statement which first led to the investigation of the embezzlement cases from a different angle and eventually led to the formulation of charges of conspiracy between the Joint Magistrate and the clerk to defraud the Government.

4. The second appellant begins his statement by saying that he wishes to make a clean breast of the whole affair in ' the muddle created between ' himself and the first appellant, that after being in jail for six months and having gone through the whole question very calmly he was convinced that his statement would relieve his heart. He then goes on to refer to eleven items of misappropriation, five of which were then pending enquiry before the Magistrate. With reference to those five (which include the major items in the present charges) he says that he would say nothing because they are sub judice. With reference to the general question of misappropriation of fines, he has a good deal to say. He begins by saying that the period of malpractices begins from January, 1940, and extends to the end of November, 1942 (i.e., for six months after the departure of first appellant). He refers to the first appellant's leave at the end of 1940, and says that he was in charge of the first appellant's incidental expenditure during his absence and that in order to finance his expenditure he utilised a sum of Rs. 200 collected in Criminal Appeal No. 32 of 1940, and that the first appellant never reimbursed the money though requested several times. He then refers to an amount of Rs. 75 collected as costs in M.P.No. 76 of 1939 in January, 1940, and suggests that this money was kept by the first appellant and that he was unable to do anything about it. Next he refers to a payment of a fine of Rs. 75 in C.C. Np. 177 of 1941 imposed on 27th March, 1942, and the suggestion is that at this time there were pressing demands from jutkamen whom the second defendant had employed in connection with the defence of the first appellant in Mr. Stewart's inquiry and that the first appellant asked him to adjust this claim from the money in his hands and it is suggested that Rs. 50 paid on thespot by the accused in this case was utilised by him in that way and that the first appellant never repaid the money. Then he refers td an item of Rs. 25 which was the permanent advance of an Honorary Magistrate's Court which had been abolished and this amount he says that he forgot to hand over to his successor. There is no allegation against the first appellant in this connection. Then he says: I had to commit deliberate acts of misappropriation between April and November 1942, and would not have done them but for the following reasons. Then he goes on to explain how his misappropriations after the first appellant left the district were due to his experience in connection with the first appellant, He suggests that various fine amounts were retained by the first appellant though he ' might have used some of those amounts ' himself and that he was unable to credit them even though he had passed receipts 'by order.' He dilates on the expenditure he had incurred in order to persuade witnesses who had been examined by the District Superintendent of Police, to go back on their evidence is the enquiry by Mr. Stewart' and he alleges that he had to finance this expenditure because the first appellant was unwilling to create evidence against himself by drawing on his own banking account. The result of this was that the second appellant borrowed and got into trouble and was compelled to misappropriate money in order to pay off his creditors. He says that he ' fell into the grip of the first appellant and was gradually dragged into the mire,' that he spent between Rs. 1,500 and Rs. 1,800 on behalf of the first appellant in Mr. Stewart's enquiry and he closes his statement by suggesting that not only the first appellant but also his successors shut their eyes to the failure of the second appellant to enter the properties in the property register, apparently in order to give the second appellant an opportunity to make the matters good.

5. Certain significant points must be mentioned in connection with this statement. It says nothing whatever about the items which have been most strongly pressed against the first appellant as evidence of conspiracy. These items have been referred to in the arguments as the fire extinguisher money, the gold ingot and Rs. 400 currency notes in C.C. No. 23 of 1941 and the amount of Rs. 800 in currency notes in C.C. No. 168 of 1941. Though the second appellant blames the first appellant for his downfall and ascribes it to the necessity to spend money on behalf of the first appellant he nowhere suggests that he and the first appellant agreed together in 1940 to enter upon a systematic course of fraud against the Government. However that may be, the fact remains that as a result of an elaborate investigation of a large number of instances of misappropriation accompanied by the falsification of accounts, statements and registers, charges were formulated against both the appellants the effect of which is that all these malpractices were the result of a conspiracy between the two appellants the object of which was to misappropriate the funds.

6. Before proceeding further it will be convenient to dispose of two legal objections which have been raised by Sir Tej Bahadur Sapru on behalf of the first appellant. The first objection relates to the validity of the order sanctioning the prosecution! That order is Ex. HHH and it recites the information received regarding the commission of the various offences alleged and states:

Now therefore His Excellency the Governor of Madras hereby accords his sanction under Sub-section (1) of Section 197 of the Code of Criminal Procedure 1898, of the crosecution of the said T.S. Swaminathan for the said offences or abetment thereof.

It is signed by Mr. C.F.V. Willaims, Secretary to Government, by order of His Excellency the Governor. The contention is that the proof of this sanction order by the proof of the signature of Mr. Williams is not sufficient evidence that sanction has been accorded by His Excellency the Governor ' exercising his individual judgment,' as laid down in Section 197 of the Code of Criminal Procedure as amended in the light of the provisions of Sections 52 and 271(2) of the Government of India Act. The argument is that although the genuineness of the sanction order may have been proved by the prosecution, something more is necessary to establish that His Excellency exercised his individual judgment when according sanction.. It was at first suggested that Mr. Williams who signed the order ought to have been examined to prove that he was present when His Excellency applied his mind to the matter and sanctioned the prosecution. But it was pointed out that one but His Excellency himself could speak to that which passed in the mind of His Exce-lency. Sir Tej Bahadur Sapru thereupon went so far as to suggeest that the only way in which a sanction under Section 197 of the Code of CriminalProcedure could be proved would be to examine the Governor himself to speak to the exercise of his individual judgment. It seems to us that this contentionis ill-founded When once the Secretary to the Government under the orders of His ExceTency certffies that HisExcellency has accorded sanctionunder Section 197 of the Code of Criminal Procedure, that is in our opinion a sufficient proof that His Escellency has sanctioned the prosecution in theexercise of his indicidual judgment as prescribed in that section in the absence of any evidence to the contrary.

7. A further legal contention relates to the effect of Section 162 of the Code of Criminal Procedure. Amongst the exhibits are six complaints, H, K, F, 1 A and R preferred by the persons concerned with reference to fresh instances of embezzlements discovered after the special staff had commenced the investigation of the conspiracy charge The argument put forward on behalf of the tot appelIan is that these so-called complaints are really statements made to a police officer in the course of investigation, that they have been signed by the deponents in contravention of the provisions of Section 162 and that the mere use of such signed statements invalidates the whole trial. This contention seems to us to be quitelntenabe If these complaints are really statements coming under Section 162, they would of course, be quite inadmissible as evidence for the prosecution and the fact that they have been wrong y signed would not greatly increase the illegality of the use of such statements in evidence. But they are in fact nothing of the kind. They are routine complaints of new cases of embezzlement and not statements made by a witness in the course of investigation of a conspiracy charge. They are moreover of no importance in the present proceedings. We consider that their admission in evidence merely for the purpose of showing how fresh instances of embezzlement came to be investigated, is unobjectionable.

8. (After discussing the evidence His Lordship concluded)--

9. We are of opinion that the case of conspiracy, which is the only case before us, fails.

10. In the result therefore, we allow the appeals and set aside the convictions and sentences and direct the fine, if paid, to be refunded. The bail bond of the firs appellant will be cancelled. The second appellant will be directed to give bail to the satisfaction of the Second Assistant Registrar to appear and answer the charges pending against him in the Court of the Sub-Divisional Magistrate Bhadrachalam.


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