Madras High Court
The President vs N.Karthikeyan on 13 December, 2021
Crl.R.C.No.1467 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.12.2021
CORAM:
THE HON'BLE Ms.JUSTICE R.N.MANJULA
Crl.R.C.No.1467 of 2016
The President
rep. by Mr.P.Rajendiran
S.1337 Salem Industrial Employees
Coop. House Construction Society Ltd.,
1-A, Yercadu Main Road,
Thirunagar, Salem-7.
... Petitioner
Vs.
1.N.Karthikeyan
2.State represented by
Inspector of Police,
CCIW-CID, Salem Unit,
Salem, Salem District.
(Crime No.2 of 2003)
... Respondents
Criminal Revision filed under Sections 397 and 401 Cr.P.C praying to call
for the records of order dated 22.08.2013 made in C.C.No.229 of 2005 on the
file of The learned Judicial Magistrate No.III (FAC), Salem, Salem District and
set aside in so far as releasing the accused persons on Probation u/s 4(1) of
Probation of Offenders Act and impose major punishment against them.
For Petitioner : Mr.M.R.Jothimanian
For Respondents : Mr.K.V.Sridharan for R1
Mr.A.Gopinath
Government Advocate (Crl. Side) for R2
***
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Crl.R.C.No.1467 of 2016
ORDER
This Criminal Revision case has been preferred challenging the judgment
of the learned Judicial Magistrate-III, Salem dated 22.08.2013 made in
C.C.No.229 of 2005.
2. The revision petitioner is said to be the President of S1337 Salem
Industrial Employees Co-operative House Construction Society Limited. The
Industrial Employees Co-operative House Construction Society Limited is
formed by its members for constructing houses to its members. The accused
(Karthikeyan), who was functioning as a Secretary, was alleged to have
misappropriated the funds entrusted to him by forgery, falsification of accounts
and failed to maintain proper accounts. On the basis of the inspection report
prepared by the Deputy Registrar (Housing) (PW2), Salem Region, a case has
been registered in Crime No.2 of 2002 under Sections 408, 409, 467, 471 and
477(A) by PW5/Venugopal, Inspector of Police. After concluding the
investigation, charge sheet has been filed against the accused for the offence
under Sections 120(B), 408, 467, 471 and 477(A) read with 109 IPC. After the
case was taken on file and on being satisfied with the materials produced before
the Court, the learned Trial Judge framed the charges against the accused under
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Sections 408 and 477(A) IPC. When the accused was questioned, he pleaded
innocence and he claimed to be tried.
3. During the course of the trial, on the side of the prosecution 5
witnesses have been examined as PW1 to PW5 and 6 documents were marked
as Exs.P1 to P6. On the side of the defence, no witness was examined and no
document was marked.
4. At the conclusion of the trial and on consideration of the evidence
produced before the Court, the learned Trial Judge found the accused guilty for
the offence under Sections 408 and 477(A) IPC. However, the learned
Magistrate had chosen to give the benefit of Section 4 of Probation of Offenders
Act to the accused. Challenging the above judgment with regard to the granting
of benefits under Section 4 of the Probation of Offenders Act, neither the State
nor the Official Deputy Registrar of Society had filed any revision for revising
punishment. However, the President of the Society has filed this revision for
awarding punishment to the accused by setting aside the order of the release
passed under Section 4 of Probation of Offenders Act.
5. The learned counsel for the revision petitioner submitted that the
learned Magistrate had chosen to give the benefit of Probation of Offenders Act
on the promise that the accused would make good the loss by paying the
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misappropriated amount. But in reality, the amount has not been paid and the
documents also do not disclose the above payment. He further submitted that
the subscription amount of the members of the Society forms part of the fund of
the Society and hence if the funds of the Society is misappropriated, the real
victims would be the members of the Society only. Hence, the President of the
Society has assumed the responsibility of challenging the order of releasing the
accused under the Probation of Offenders Act.
6. The learned counsel for the first respondent/accused submitted that the
order of the learned Magistrate cannot be challenged because the finding has
been recorded as to the payment of the misappropriated amount to the Society
and hence, the revision has to be dismissed. He further submitted that the
petitioner has got no locus standi to file this revision.
7. The learned Government Advocate (Crl. Side) appearing for the second
respondent/State submitted that appropriate orders may be passed.
8. Heard the learned counsel for the revision petitioner, the learned
counsel for the first respondent and the learned Government Advocate
(Crl.Side) appearing for the second respondent.
9. Point for consideration:
Whether the release of the accused on Probation under Section
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Crl.R.C.No.1467 of 2016
4 of Probation of Offenders Act by the learned Judicial Magistrate
based on the materials available on record is legal and proper?
10. As per Section 372 Cr.P.C, a victim can have the right to prefer an
appeal against the order of acquittal or for enhancement of sentence. The
language of Section 372 Cr.P.C is extracted as below:-
“372. No appeal to lie unless otherwise provided. - No
appeal shall lie from any judgment or order of a Criminal
Court except as provided for by this Code or by any other law
for the time being in force.
[Provided that the victim shall have a right to prefer an
appeal against any order passed by the Court acquitting the
accused or convicting for a lesser offence or imposing
inadequate compensation, and such appeal shall lie to the
Court to which an appeal ordinarily lies against the order of
conviction of such Court.]”
11. If the accused gets the benefit of release under the Probation of
Offenders Act, without repaying the amount misappropriated by him, no doubt
the persons affected would be the members of the Society with whose funds the
Society is being run. If the State did not opt to challenge the inadequacy of
compensation or no compensation, the victim has got no other option except to
take recourse to Section 372 proviso. The revision petitioner cannot be strictly
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Crl.R.C.No.1467 of 2016
seen as a third person, who is not interested in the outcome of the case
proceedings. The Society being a juridical person, it has to be represented by
any of its office bearers, who is authorised to represent the Society.
Accordingly, the President of the Society has filed this revision for projecting
the interest of its members, whose funds have been misappropriated by the
accused. It is to be noted that the first respondent/accused has not challenged
the finding of 'guilt' by the learned trial Judge. So the findings as to guilt of the
accused has become final and unchallenged. It is probably because he was
given with the benefit of Probation of Offenders Act. During the course of these
proceedings, a maintainability question was raised by the learned Public
Prosecutor. The learned counsel for the petitioner submitted that the law has
been well settled on this point by the Hon'ble Supreme Court in the case of
Mallikarjun Kodagali (Dead) Vs. State of Karnataka and others reported in
(2019) 2 SCC 752 and the relevant paragraphs are paragraphs 72 & 73, which
read as follows:-
“72. What is significant is that several High Courts have
taken a consistent view to the effect that the victim of an offence has
a right of appeal under the proviso to Section 372 of the Cr.P.C.
This view is in consonance with the plain language of the proviso.
But what is more important is that several High Courts have also
taken the view that the date of the alleged offence has no relevance
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to the right of appeal. It has been held, and we have referred to
those decisions above, that the significant date is the date of the
order of acquittal passed by the Trial Court. In a sense, the cause of
action arises in favour of the victim of an offence only when an
order of acquittal is passed and if that happens after 31st
December, 2009 the victim has a right to challenge the acquittal,
through an appeal. Indeed, the right not only extends to challenging
the order of acquittal but also challenging the conviction of the
accused for a lesser offence or imposing inadequate compensation.
The language of the proviso is quite explicit, and we should not
read nuances that do not exist in the proviso.
73. In our opinion, the proviso to Section 372 of the Cr.P.C.
must also be given a meaning that is realistic, liberal, progressive
and beneficial to the victim of an offence. There is a historical
reason for this, beginning with the Declaration of Basic Principles
of Justice for Victims of Crime and Abuse of Power, adopted by the
General Assembly of the United Nations in the 96th Plenary Session
on 29th November, 1985. The Declaration is sometimes referred to
as the Magna Carta of the rights of victims. One of the significant
declarations made was in relation to access to justice for the victim
of an offence through the justice delivery mechanisms, both formal
and informal. In the Declaration it was stated as follows:
“4. Victims should be treated with compassion and respect for their
dignity. They are entitled to access to the mechanisms of justice and
to prompt redress, as provided for by national legislation, for the
harm that they have suffered.
5. Judicial and administrative mechanisms should be established
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and strengthened where necessary to enable victims to obtain
redress through formal or informal procedures that are expeditious,
fair, inexpensive and accessible. Victims should be informed of their
rights in seeking redress through such mechanisms.
6. The responsiveness of judicial and administrative processes to
the needs of victims should be facilitated by:
(a) Informing victims of their role and the scope, timing and
progress of the proceedings and of the disposition of their cases,
especially where serious crimes are involved and where they have
requested such information;
(b) Allowing the views and concerns of victims to be presented and
considered at appropriate stages of the proceedings where their
personal interests are affected, without prejudice to the accused and
consistent with the relevant national criminal justice system;
(c) Providing proper assistance to victims throughout the legal
process;
(d) Taking measures to minimize inconvenience to victims, protect
their privacy, when necessary, and ensure their safety, as well as
that of their families and witnesses on their behalf, from
intimidation and retaliation;
(e) Avoiding unnecessary delay in the disposition of cases and the
execution of orders or decrees granting awards to victims.
7. Informal mechanisms for the resolution of disputes, including
mediation, arbitration and customary justice or indigenous
practices, should be utilized where appropriate to facilitate
conciliation and redress for victims.”
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12. The learned counsel for the petitioner also cited the decision of the
Full Bench of this Court in the case of K.Rajalingam Vs.R.Suganthalakshmi
etc., reported in 2020 (4) CTC 1. In the said judgement, the Hon'ble Full Bench
of this Court held that such revisions or appeals filed by the victim challenging
the acquittal or inadequate compensation would only lie before the High Court.
Relevant paragraph is paragraph 28 and the same reads as follows:
“28. Accordingly, we answer the reference as under.
1. As against an order of acquittal passed by a Magistrate on a
complaint, an appeal will lie only before the High Court,
under Section 378 (4) of Cr.PC. In such cases, the complainant has
to seek for Special leave under Section 378 (5) of Cr.PC. The
first Crl.R.C. Nos.494 & 536 of 2019 & Crl.M.P.No.1789, 1794 &
7289 of 2019 question in the order of reference is answered
accordingly.
2. By virtue of the answer given to the first question, the questions 2
to 6 raised in the order of reference becomes more academic and
therefore, there is no need to undertake the exercise of answering
those questions.
3. The decision rendered in S.Ganapathi case is declared as a
judgement per-incuriam, since it has been decided without reference
to the binding authority in Damodar S.Prabhu and Subash Chand.
That apart it is no longer a good law by virtue of the judgement of
the Hon’ble Supreme Court in Mallikarjun Kodagali. We answer the
7th question in the order of reference accordingly and proceed to
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Crl.R.C.No.1467 of 2016
issue the following directions :-
(a) An appeal which was pending before this Court and which
was remanded to the Sessions Court pursuant to S.Ganapathi
(Supra) and the same is pending, the same should be transferred
back to the file of the High Court and should be considered to be
pending before the High Court. The same effect will be given
even for cases where the original appeal was filed before the
Sessions Court and is pending.
(b) In cases where the Sessions Court has confirmed the order of
acquittal passed by the Magistrate and a revision petition has
been filed before this Court by the complainant and the same is
pending, the order of Sessions Court must be disregarded and
the revision petition filed before this Court by the complainant
must be treated as an Appeal by virtue of Section 401(5) of
Cr.PC. Those revision petitions must be renumbered as Criminal
Appeals by the Registry.
(c) In cases, where, the order of acquittal has been confirmed by
the Sessions Court and it has not become final or it has not been
acted upon by the parties and the complainant wants to
challenge the same, he shall file a Criminal Appeal before this
Court against the order passed by the Magistrate, disregarding
the order passed by the Sessions Court, within the limitation
period prescribed for filing Appeal and which shall be calculated
from the date on which the Sessions Court order was made
ready. In such cases, the complainant has to seek for a Special
leave under Section 378 (5) of Cr.PC.
(d) In cases, where, the Sessions Court has reversed the order of
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acquittal passed by the Magistrate and the same has been
challenged by the accused before this Court by way of revision
petition and the same is pending, the same should be treated as
an Appeal pending before this Court against the order of
Acquittal passed by the Magistrate, by disregarding the order
passed by the Sessions Court. In all those cases, the complainant
must file a transpose petition and the Registry must convert the
same as Criminal Appeals by showing the complainant as the
Appellant and the accused as the respondent. The Memorandum
of grounds of Criminal Appeal filed before the Sessions Court
will be considered as the memorandum of grounds of appeal in
the renumbered Criminal Appeal.
(e) In cases, where the Sessions Court has reversed the order of
acquittal passed by the Magistrate and convicted the accused
and this order has not become final or the same has not been
acted upon, the accused person has to necessarily challenge the
said order by filing a criminal revision petition before this Court
by quoting this Full Bench judgement. After notice is served on
the complainant and he enters appearance, the same should be
treated as an Appeal pending before this Court against the order
of Acquittal passed by the Magistrate, by disregarding the order
passed by the Sessions Court. In all those cases, the complainant
must file a transpose petition and the Registry must convert the
revision as Criminal Appeal by showing the complainant as the
Appellant and the accused as the respondent. The Memorandum
of grounds of Criminal Appeal filed before the Sessions Court
will be considered as the memorandum of grounds of appeal in
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Crl.R.C.No.1467 of 2016
the renumbered Criminal Appeal.
(f) In all those cases, where, either after remand or by means of
filing, an Appeal has been finally decided by the Sessions Court
and the same has not been challenged or it has been acted upon,
the order passed by the Sessions Court will be final inter-partes
and it cannot be re-opened by virtue of this judgement.
(g) In all those cases, where, the order of the Sessions Court was
put to challenge before this Court, either by the complainant or
by the accused, as the case may be, and final orders have been
passed by this Court and it has become final inter-partes or has
been acted upon, it cannot be re-opened by virtue of this
judgement.”
13. In view of the clarity shown through the above judgments, there is no
dispute that a victim of such an offence is entitled to file an appeal for
challenging the inadequacy of compensation or no compensation before the
High Court by invoking Section 372(1) Cr.P.C. But in this case the Revision
Petitioner has chosen to file only a petition and not an appeal, despite the lower
Court has not awarded any compensation to be payable to the Society. This is
because the trial Court had believed that the accused had paid the loss to the
Society. Since the petitioner claims that the loan has not been paid by the
accused, he has preferred this Revision by challenging the propriety and legality
of the above order passed by the learned Magistrate.
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14. While giving the benefit of Probation of Offenders Act to the first
respondent/accused, the learned Magistrate has made the following
observations:-
“10. When the accused was questioned under Section 248(2)
Cr.P.C as to the sentence proposed to be past against him, he
submitted that he has paid the entire amount to the society and
prayed to release him on admonition. Since the accused seems to
be the first offender and the entire amount have been paid to the
Society, this Court is inclined to find out “whether the benefit under
the Probation of Offender Act can be given to the accused or not”
11. In the result accused found guilty under 408 & 477(A)
IPC. Considering the facts and circumstances of the case, the
accused seems to be first offender, and the previous conviction is
not mentioned in the charge sheet. This Court is inclined to find out
“whether the benefit under the Probation of Offender Act can be
given to the accused or not”. Hence called for report of the
probationary officer.
Friday, the 21 st day of August 2013
Report of the Probationary Officer received on 13.08.2013.
12. In the report of the Probationary Officer it reported as
follows:
Fw;wk; rhl;lgl;l fhh;j;jpnfad; j-bg. eluh$d;
vd;gthpd; Kd; elj;ij Fwpj;J tprhuiz
nkw;bfhz;nld;/ ,th; kPJ Flk;gj;jpdh; kpFe;j
mf;fiwa[k;. Mh;tKk; bfhz;Ls;sdh;/ ,th; gp/</
gl;lg;gog;g[ Koj;j FWfpa fhyj;jpnyna tPL
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fl;Lkhd r';fj;jpy; brayhsuhf nrh;e;J gzp
bra;Js;shh;/ nghjpa mDgtk; ,y;yhj
fhuzj;jpdhy; gzpapy; Rzf;fk; Vw;gl;L Fw;wk;
epfH;e;Js;sJ vd;Wk; ,dp ,J nghd;w jtWfs;
elf;fhky; vjph;fhyj;jpy; ey;yKiwapy; thH;ntd;
vd;Wk; bjhptpf;fpwhh;/ tU';fhy ed;dlj;ijf;F
cj;juthjj;jpid ,tuJ bgw;nwhh;fSk; jUfpd;wdh;/
,th; Kd; Fw;wk; ,y;yhjth; vd tprhuizapy;
bjhpa te;Js;sJ/ jtWf;F tUe;Jfpwhh.;
jz;lidf;F m";Rfpwhh;/
vdnt ,tuJ thH;tpid rPh; Jf;fyhk;
vdf;fUjp Fw;wk; rhl;lg;gl;l fhh;j;jpnfad;
j/bg/eluh$d; vd;gtiu 1958k; Mz;L
,e;jpaf;Fw;wthspfs; ed;dlj;ij rl;lj;jpd; gphpt[
4(1)d; fPH; tpLtpj;J mnj rl;lk; gphpt[ 4(3)d; fPH;
Xuhz;L fhyk; nryk; nfhl;lk; ed;dlj;ij
mYtyhpd; nkw;ghh;itapy; itf;fyhk; vd;W
Mizfs; gpwg;gpf;FkhW ghpe;Jiu bra;fpnwd;/
13. On the perusal of P.P.report this court has came to know
that the accused is the first offender and he apologizing for the
offence committed by him. Moreover the witnesses and
Investigating Officer in this case have deposed in their evidence
that the accused have paid entire amount to the Society, the benefits
under Probation of Offenders Act could be afforded to the accused.
14. Considering the circumstances, the age of the
accused and the his family circumstances stated in the report
and the accused have paid entire amount to the Society, this
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court is inclined to provide the benefit provided under Sec.4(1)
of the Probation of Offenders to the accused.
In the result accused will be released on probation under
Sec.4(1) of the Probation Offenders Act, on execution bond for Rs.
20,000/- with 2 sureties and with a condition of 'not to participate in the
offences herein after, if he involved in the same kind of offences, he
have to receive the punishment'. The accused is put under surveillance
of the Probationary Officer for the period of 1 year from the date of this
order under Sec.4(3) of the Probation Offenders Act.”
15. It is strange to note the recommendation given by the benefit of
Probation of Offenders Act despite other case is pending against the accused in
C.C.No.179/2012 before the Judicial Magistrate No.V, Salem. The
fundamental reason for which the benefit of Probation of Offenders Act is given
is to enable the first time offenders to get an opportunity to correct their criminal
attitude without having any records of the criminal antecedents. In this case, it
is observed that the accused has got another case pending. The accused, against
whom more than one case is pending, is treated with utmost lenience for the
reason that he had already set right the loss by repaying the same to the Society.
16. The learned counsel for the petitioner vehemently denied the fact that
the accused had repaid the entire loss to the Society. Apart from this case, there
were four more cases pending against the accused in C.C.Nos.231/2005,
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232/2005, 228/2005 and 230/2005. All these cases have been filed against the
accused for misappropriation of funds of the same Society, but for different
periods. In C.C.No.228/2005 there are totally eight accused and this first
respondent/accused is ranked as the first accused. It is submitted that the total
amount misappropriated in all these five cases is Rs.75,70,166/-. All these five
cases were based on the same report of PW3 dated 17.01.2002 sent by Co-
Operative Sub Registrar to Housing Co-operative Sub Registrar (Athur). In
pursuance of the said report, Section 81 enquiry was conducted and at the end
of the enquiry, it is concluded that a sum of Rs.75,70,166/- have been
misappropriated on different heads. Hence, separate cases have been registered
for separate Heads of Accounts. However, in all the five cases, the same
observation has been made by the learned Magistrate that the first
respondent/accused had paid the entire amount to the Society. The revision
petitioner, who is appearing for the Society, has denied the above fact and
claimed that only a part payment of Rs.18,30,940.50/- has been paid and the
balance of Rs.57,39,225.50/- has not been paid. Despite the learned counsel for
the first respondent/accused has repeatedly submitted that the entire amount has
been paid by the first respondent/accused, no document has been produced
either before the trial Court or before this Court to substantiate the same.
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17. In such circumstances, the observation of the learned trial Judge that
the entire amount has been paid by the first respondent/accused is questionable.
While making such observation and taking the same into consideration for
giving the benefit of Probation of Offenders Act, the learned Magistrate ought to
have seen the relevant records and only thereafter, he ought to have recorded the
finding with regard to payment. The appreciation of materials that is alleged to
have been produced before the Magistrate for considering the granting benefits
under Probation of Offenders Act is found to be short-sighted and incomplete
and not legal.
18. I feel that the matter has to be remanded back to the learned trial
Judge for getting relevant materials and to record afresh as to the payment of the
loss to the Society by the accused and the consequential benefits given to him
under Section 4 of Probation of Offenders Act. However, this order will not
have any impact on the finding of the guilt of the first respondent/accused.
19. In the result, this Criminal Revision is allowed and the judgement
dated 22.08.2013 made in C.C.No.229 of 2005 passed by the learned Judicial
Magistrate No.III (FAC), Salem is hereby set aside only with regard to the
granting of benefit under Section 4 of Probation of Offenders Act and the matter
is remitted back to the learned Judicial Magistrate No.III (FAC), Salem for
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getting relevant materials and pass an order afresh as to the payment of the loss
to the Society and the benefits given to him under Section 4 of Probation of
Offenders Act.
13.12.2021
(4/5)
Index: Yes/No
Speaking / Non Speaking Order
kmi
To
1.The Judicial Magistrate No.III,
(FAC), Salem.
2.The Inspector of Police,
CCIW-CID, Salem Unit,
Salem, Salem District.
3.The Public Prosecutor,
High Court of Madras,
Chennai-600 104.
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Crl.R.C.No.1467 of 2016
R.N.MANJULA, J
kmi
Crl.R.C.No.1467 of 2016
13.12.2021
(4/5)
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