Madras High Court
Pandi @ Pandian vs The State on 3 March, 2021
Crl.O.P.(MD)No.13838 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE ON WHICH RESERVED : 03.03.2021
DATE ON WHICH PRONOUNCED : 01.04.2021
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.O.P.(MD)No.13838 of 2017
and
Crl MP(MD)Nos.9294 & 9295 of 2017
1.Pandi @ Pandian
2.Arjunan ... Petitioner/Accused Nos.1 & 2
Vs.
1.The State
Rep by its Inspector of Police,
Villur Police Station,
Madurai District.
Crime No.91 of 2012. ... 1st Respondent/Complainant
2.Saraswathi ... 2nd Respondent/Defacto
Complainant
Prayer:Criminal Original Petition is filed under Section 482 Cr.P.C., to call
for the records in C.C.No.23 of 2017 pending on the file of the learned
District Munsif Cum Judicial Magistrate, Peraiyur and quash the same.
For Petitioner : Mr.N.Sathish Babu
For R1 : Mr.M.Ganesan,
Government Advocate (Crl.Side)
For R2 : No Appearance
1/9
https://www.mhc.tn.gov.in/judis/
Crl.O.P.(MD)No.13838 of 2017
ORDER
This Criminal Original Petition has been filed to quash the
proceedings in C.C.No.23 of 2017 on the file of the District Munsif Cum
Judicial Magistrate, Peraiyur
2.The case of the first respondent before the Trial Court:-
The first petitioner was holding the post of President of Kenchampatti
Panchayat in T.Kallupatti Union, Madurai from 2006 – 2011. The second
petitioner was holding the post of Secretary during the relevant period.
From 1991 onwards, the villagers of Kenchampatti Panchayat were given
benefit under the housing scheme fund namely, 'Indra Gandhi Aavash
Yojana'. During 2009 -2010 financial year, 25 houses were sanctioned to
the Village, for which, administrative sanction was also granted. Using this
scheme as an opportunity to misappropriate the fund, these petitioners
misappropriated a sum of Rs.3.85 lakhs by forging the documents and the
receipts etc., by showing 7 persons as beneficiaries under the scheme for the
financial year 2009 - 2010, who were already, benefitted under the scheme,
during the financial year 1991 – 1999.
https://www.mhc.tn.gov.in/judis/
Crl.O.P.(MD)No.13838 of 2017
3. Based upon the complaint given by the Block Development
Officer, attached to Panchayat Union Office of T.Kallupatti, on 11.11.2012,
a case in Crime No.91 of 2012 was registered on the file of the first
respondent. So, the investigation was undertaken and materials were
collected. The statements of the witnesses were recorded. After completion
of investigation, the first respondent has filed a final report stating that the
petitioners have committed the offences punishable under Sections 420,
465, 468 and 477 (A) IPC.
4. Challenging the final report, these petitioners moved this Court by
way of filing MP(MD)No.2 of 2014 in Crl.OP(MD)Nos.2354 & 2467 of
2014 seeking stay of the investigation. This Court, by its order dated
13.03.2015, granted an interim stay of filing of final report. But, the first
respondent appears to have completed the investigation and filed a final
report on 25.01.2017.
5. Challenging the same, the present petition has been filed by the
petitioners stating that the first respondent has violated the order of this
Court in the above said MP(MD)No.2 of 2014 and it is liable to be quashed.
https://www.mhc.tn.gov.in/judis/
Crl.O.P.(MD)No.13838 of 2017
It is the further contention that even as per the materials collected by the
Investigating Officer, no offences were attracted against these petitioners
since the Assistant Director (Audit), attached to the Madurai District, used
to conduct audit every year and for the Accounting year 2009 – 2010 and
2010 – 2011, audit was conducted. During that time, no objection was
raised with regard to the above said irregularities.
6. Heard both sides.
7. According to the learned counsel for the petitioner, no complaint
was given by the the beneficiaries as well as the villagers; The Block
Development Officer and the District Collector are the proper persons, who
had sanctioned the scheme; The Resolution passed by the Village Panchayat
was approved by the competent authorities; The complaint alleged to have
been levelled only on the basis of the audit for the financial year 2009 –
2010; Only the second respondent is the competent authority, to reject the
proposal. But, the proposal was approved by the authorities. The permission
was also granted by the Block Development Officer and these petitioners,
held no role in the transaction.
https://www.mhc.tn.gov.in/judis/
Crl.O.P.(MD)No.13838 of 2017
8. The main allegation levelled against these petitioners, is that they
have created the documents by forging and misappropriated the Government
Fund by showing 7 persons as beneficiaries under the housing scheme fund
of 'Indra Gandhi Aavash Yojana', who were already benefited during the
year 1991 – 1999. So, materials have been collected by the Investigating
Officer and it also appears that the defacto complainant has given the
complaint, based upon the direction given by the District Collector,
Madurai, through his letter dated 10.10.2012 in Na.Ka.No.3466/2012/V.
The statement of the witnesses were recorded.
9. During the investigation, it is also shown that prima facie evidence
are available against these petitioners over the allegations. The contention
that subsequent audit undertaken by Audit Department did not disclose any
such irregularities is not a matter for consideration in this petition. So, it has
to be decided only during the trial proceedings.
10. So, the petitioners, now, cannot contend in this petition that no
prima facie materials are available against them, in the light of the audit,
undertaken by the Department, during the relevant period.
https://www.mhc.tn.gov.in/judis/
Crl.O.P.(MD)No.13838 of 2017
11. The second contention of the petitioners is that the beneficiaries
were really selected by the officials and only genuine claims were
sanctioned. But, according to the prosecution, the selection of beneficiaries
is a bogus one. The alleged beneficiaries' statement shows that they were
already benefitted under the Scheme during 1991 – 1999. So, they cannot
be the beneficiaries under the scheme during the Accounting year 2009 –
2010. So, whether these statements are true or not and whether the
photographs attached by the petitioners along with the typed set of papers
are true or not are also matters for consideration, only during the trial
proceedings. So, on this ground also this petition, cannot be allowed.
12. The last ground is that violating the stay order passed by this
Court, final report has been filed by the first respondent. According to the
counter statement filed by the first respondent, without knowing the stay
order passed by this Court, in the above said Crl.MP(MD)No.2 of 2014, the
new Investigating Officer, took up the investigation and filed the final
report. So, it was a bona fide mistake, on the part of the first respondent.
So, I find that no reason to reject the same in explaining the mistake
committed by him as a bona fide one.
https://www.mhc.tn.gov.in/judis/
Crl.O.P.(MD)No.13838 of 2017
13. It is also seen that stay order was not communicated to the Trial
Court, at the time of passing the order. So, without knowing the order of
stay, the Trial Court appears to have taken the case on file and took
cognizance of the offence. These are bona fide mistakes that have been
committed by the Government Officials. But, the petitioner cannot say that
they were prejudicially affected by filing the final report. No prejudice
appears to have been caused to these petitioners on filing this final report. If
at all, it can be construed as an irregularity committed by the first
respondent unless the petitioners are able to show the prejudice caused to
them, they cannot be permitted to take advantage of the mistake.
14. In the result, none of the arguments advanced by the petitioner are
acceptable and this petition is liable to be dismissed and accordingly, the
same is dismissed. So, the Trial Court is directed to dispose of the case as
early as possible. Consequently, connected miscellaneous petitions are
closed.
15. After pronouncing the order, the learned counsel for the
petitioners requested the Court to pass a direction to the learned District
https://www.mhc.tn.gov.in/judis/
Crl.O.P.(MD)No.13838 of 2017
Munsif Cum Judicial Magistrate, Peraiyur, to dispose of the matter within a
short time and the first petitioner being the President and the second
petitioner being the Secretary, he prayed dispense with the personal
appearance of the petitioners before the Trial Court. Considering the same,
the Trial Court is directed to dispose of the case within a period of five
months from the date of receipt of a copy of this order and the personal
appearance of the petitioners is dispensed with and they shall file an
affidavit undertaking that they will appear before the Court as and when
necessary and required. They must also affix their photographs duly attested
by their respective counsel in the affidavit. However, the petitioners shall be
present before the Court at the time of furnishing of copies, framing
charges, questioning under Section 313 Cr.P.C. and at the time of passing
judgment.
01.4.2021
Internet:Yes
Index:Yes/No
Speaking order/Non-Speaking order
dss
https://www.mhc.tn.gov.in/judis/
Crl.O.P.(MD)No.13838 of 2017
G.ILANGOVAN,J.,
dss
Note: In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for official
purposes, but, ensuring that the copy of the order that is
presented is the correct copy, shall be the responsibility of the
advocate/litigant concerned.
To
1.The District Munsif Cum Judicial Magistrate,
Peraiyur.
2.The Inspector of Police,
Villur Police Station,
Madurai District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
Crl.O.P.(MD)No.13838 of 2017
and
Crl MP(MD)Nos.9294 & 9295 of 2017
01.04.2021
https://www.mhc.tn.gov.in/judis/
