K.Ravindranath vs State Rep. By
2022 Latest Caselaw 1546 Mad

                                                                                 Crl.R.C.No.624 of 2017


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 01.02.2022

                                                          CORAM

                                    THE HON'BLE Ms. JUSTICE R.N.MANJULA

                                                 Crl.R.C.No.624 of 2017

                   K.Ravindranath                                         ... Petitioner/Accused – 1

                                                            Vs.
                   State rep. by.,
                   Inspector of Police,
                   C.C.I.W., C.I.D.,
                   Vellore.
                   (Crime No.1 of 2003)                                   ... Respondent


                   Prayer :- Criminal Revision Case filed under Section 397 r/w. 401 of
                   Cr.P.C., praying to set aside the judgment passed against the petitioner in
                   C.A.No.252 of 2011 on the file of I Additional District and Sessions Judge,
                   Vellore dated 10.08.2016 by confirming the conviction and sentence
                   imposed by the learned Judicial Magistrate No.II, Vellore, dated 21.10.2011
                   in C.C.No.304 of 2007.

                                    For Petitioner      : Mr.S.Sairaman

                                    For Respondent      : Mr.A.Gopinath
                                                          Government Advocate (Crl. Side)




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                                                                                  Crl.R.C.No.624 of 2017




                                                         ORDER

This Criminal Revision Case has been preferred challenging the

judgment of the learned I Additional District and Sessions Judge, Vellore,

dated 10.08.2016 made in C.A.No.252 of 2011.

2. The revision petitioner was the first accused before the trial Court.

3. The case of the prosecution is that the first accused was the

Secretary, the second accused was the Assistant Secretary and the third

accused was the President of Valathur Primary Agricultural Co-operative

Bank; the Secretary is responsible for the maintenance of the bank

accounts, ledgers and all transactions including the properties of the Bank.

The second accused as the Assistant Secretary of the Bank, had got a duty

to prepare Account sheets for collecting loan repayments, membership

contributions and maintain the disbursal register, Day Book and cash

register; the third accused had got over all responsibility for properties

belonging to the Bank;

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3.1 On 17.05.2000, a loan of Rs.40,000/- was sanctioned for a

member by name Venugopal against his Fixed Deposit of Rs.50,000/-; but

the accused had disbursed him only Rs.16,000/- and misappropriated the

remaining Rs.24,000/- by making false entries in the registers; on

24.06.2001, a false entry for Rs.2,000/- has been made on the pretext that

one Mohamed Ishak, who demanded crop loan has paid the share

contribution of Rs.2,000/-; when one Jeganathan demanded a crop loan, the

accused made a false entry for Rs.60/- on 24.06.2001, on the pretext that it

was paid by Jeganathan towards his share contribution. Thus, the accused 1

and 2 had misappropriated a total sum of Rs.26,060/- and have committed

the offences under Sections 408 r/w 35 and 477(A) of IPC;

3.2 On the surprise inspection made by P.W.2 – Thomas, Divisional

Supervisor, Pernampet on 08.06.2001, he noticed that for many of the

accounts, entries have been made in the loan register against the debit and

credit columns but relevant entries have not been made in the Day Books.

In view of this, he submitted a special report dated 11.06.2001 to the

Special Officer, Central Co-Operative Bank, Vellore. During the relevant

time, P.W.4 – Gurunathan, Field Manager at Gudiyatham Branch, also had

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submitted a special report to the Special Officer, Central Co-operative

Bank, Vellore on 23.06.2001 by stating that the quantum of loan amount

have been magnified by making false entries in the ledger account, though

lesser amount was disbursed to the members of the Co-operative Bank

towards jewel loan; by taking advantage of the magnified figures shown in

the ledger, they got more amount from the Central Co-operative Bank and

misappropriated the difference;

3.3 On receiving the special reports, P.W.3 – Ranganathan, Deputy

Registrar of Thirupattur Division had appointed one P.W.8 – Thangavelu as

the Enquiry Officer and issued proceedings – Ex.P2. Since Thangavelu

went on leave, a revised proceedings was issued for appointing one

Rajendiran – P.W.9 as the Inquiry Officer. After completing the enquiry,

P.W.9 – Rajendiran has submitted a report stating that a total sum of

Rs.26,25,529/- have been misappropriated in the Bank during the relevant

period.

3.4 On the complaint given by P.W.1 – Thandavamoorthy, Deputy

Registrar of Co-Operative Bank, a case in Crime No.1 of 2003 of CCIW

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Police was registered and an F.I.R was prepared on 05.01.2003. P.W.10 –

Deivasigamani, Inspector of Police, who registered the case took up the

case for investigation and seized the relevant records and arrested the

accused 1 and 2 namely Ravindranath and Boopathy respectively, on

05.01.2003 and sent them for remand. During the pendency of the

investigation, P.W.10 got transferred to some other place so,

P.W.11 – Pandari, Inspector of Police, succeeded him and continued the

investigation. He examined the rest of the witnesses and completed his

investigation and filed a charge sheet against the accused on 30.05.2005.

4. After the case was taken on file and on being satisfied with the

materials available on record, the learned trial Judge has framed the charges

against the accused for the offence under Sections 408 r/w. 35 and 477(A)

r/w. 35 of IPC. When the accused were questioned, they pleaded innocence

and claim to be tried.

5. During the course of the trial, on the side of the prosecution, 11

witnesses were examined as P.W.1 to P.W.11 and 16 documents were

marked as Exs.P1 to P16. When the incriminating materials surfaced from

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the evidence of the complainant was put to the accused 1 & 2 under Section

313 Cr.P.C., they denied their involvement. On the side of the defence no

witness was examined and no document is marked.

6. At the conclusion of the trial and on considering the evidence

available on record, the learned trial Judge found the first accused guilty as

under:-

Rank Provisions under which convicted Sentence A1 408 IPC Three months Rigorous Imprisonment and imposed a fine of Rs.500/- in default to undergo 15 days Rigorous Imprisonment 477(A) IPC Three months Rigorous Imprisonment and imposed a fine of Rs.500/- in default to undergo 15 days Rigorous Imprisonment

The sentences shall run concurrently.

The second was found not guilty and acquitted.

7. The Criminal Appeal preferred by the first accused in C.A.No.252

of 2011 before I Additional District and Sessions Judge, Vellore, was also

dismissed on 10.08.2016. Aggrieved over that, the first accused preferred

this present revision case.

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8. Heard the learned counsel for the petitioner/first accused and the

learned Government Advocate (Criminal Side) appearing for the

respondent/State.

9. The learned counsel for the petitioner/first accused submitted that

the Exhibits marked as Exs.P4 & P5 would show that the said Venugopal –

P.W.5 had availed a loan of Rs.40,000/- from the Fixed Deposit and for

which, he had executed the papers on 08.06.2001; the alleged receipt issued

for Rs.16,000/- was not signed by the first accused; despite it is claimed

that the first accused has affixed the signature, the same was not proved;

the enquiry made under Section 81 of the Tamil Nadu Co-Operative

Societies Act, should be completed within a mandatory period of three

months and at the maximum extended time limit of six months; despite the

Enquiry Officer was appointed on 11.07.2001, the enquiry report has been

submitted only on 18.03.2002; hence, the inquiry report itself is violative of

Section 81(4) and it is not valid; the case registered basing on the enquiry

report itself is unlawful; the Day Book is not marked as a document by the

prosecution though it is the best evidence; the learned trial Judge had

acquitted the second accused; the Enquiry Officer has given a finding that

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both the accused were responsible for the affairs of the Bank; hence, the

first accused alone cannot be found guilty for any offence and he should

also have been acquitted.

10. The learned Government Advocate (Criminal Side) appearing for

the respondent State submitted that the witnesses have deposed evidence

stating that the first accused had misappropriated the difference in the

amount sanctioned and amount disbursed as loan; the Officers of the

Co-operative Bank who have conducted the enquiry and prepared the

special report have also stated in their evidence about the misappropriation

committed by the first accused; the learned trial Judge and the First

Appellate Judge have appreciated the evidence in a proper perspective and

found the first accused guilty and hence, it needs no interference.

11. Point for Consideration :-

Whether the finding of the guilt of the first accused for the offences

under Sections 408 and 477(A) of IPC, based on the materials available on

record is fair and proper?

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12. It is seen from the judgment of the learned trial Court that despite

three different allegations have been made, the first accused had been

convicted for misappropriating a sum of Rs.24,000/- from the Fixed

Deposit of P.W.5.

13. On perusal of Exs.P4, P5 & P12 produced before this Court, it is

seen that P.W.5 has deposited a sum of Rs.50,000/- in the Fixed Deposit

scheme for five years and three months. The rate of interest of loan for the

above deposit is 13.5% p.a. The file would show that P.W.5 had signed the

receipt for receiving a sum of Rs.40,000/- as loan. It is not the contention

of P.W.5 that the signatures found in Exs.P4, P5 & P12 are not his

signatures. The one and only document on which the prosecution attempted

to stand its case is fixed deposit receipt given by the Co-Operative Bank. In

the said receipt, the first accused did not affix his signature as submitted by

the prosecution. The loan card is not signed by the first accused and its

connection to the said receipt is not proved by the prosecution. It is alleged

that the first accused has affixed his initials on the backside of the receipt to

show that P.W.5 has taken the entire loan amount of Rs.16,000/-. But the

said receipt has not been signed by the first accused. The rest of the

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documents available on file would show that in the month of June, 2001, a

sum of Rs.40,000/- only was sanctioned for P.W.5 and for which, he has

executed all the relevant loan documents. But the prosecution has not

proved the case basing on Ex.P12 – loan file beyond reasonable doubt that

it contained some false entries.

14. The learned trial Judge found the first accused guilty basing on

the oral evidence of the prosecution witnesses. There is no dispute with

regard to the signatures of the witnesses on the documents maintained by

the Bank, in connection with their transactions. When the case of the

prosecution is relied on the documentary evidence, it is the duty of the

prosecution to bring the relevant documents and mark them as evidence

before the Court. The borrowers are interested witnesses who would tend

to avoid their liability to settle the entire loan amount availed by them by

stating that they had availed a lesser amount. None of the borrower has

given any complaint against any of the officials by stating that they had

given with lesser amount but demanded to repay more.

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15. When it is specifically alleged by the prosecution that certain

entries have been made by the first accused, it should be proved that those

entries have been made in the handwritings of the first accused. In fact, the

second accused who had got the duty to maintain the registers himself was

found not guilty and acquitted. Further, the corresponding Day Books are

also not produced to show that that misappropriation has been made by

making false entries on them.

16. The fact about the handwritings of the first accused could be

proved only by showing that the handwritings in the entries on the

documents tally with his admitted handwritings. Further, the corresponding

accounts were also not produced to show that there was a difference in the

loan amount sanctioned and the loan amount disbursed. Without proving

the above fundamental, the first accused cannot be found guilty merely on

the basis of the oral evidence of the borrower.

17. Since the prosecution has omitted to produce the relevant

documents, the Courts below ought to have given benefit of doubt to the

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first accused also and held that the charges against the first accused also not

proved beyond reasonable doubts. Hence, the judgement of the Court

below, warrants interference.

18. In the result, this Criminal Revision Case stands allowed and the

judgment of the learned I Additional District and Sessions Judge, Vellore

dated 10.08.2016 passed in C.A.No.252 of 2011 is hereby set aside.

01.02.2022

(3/3)

Speaking/Non-speaking Index : Yes/No Internet: Yes/No

Sni

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To

1.The I Additional District and Sessions Judge, Vellore.

2.The Judicial Magistrate No.2, Vellore.

3.The Public Prosecutor, High Court, Madras.

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R.N.MANJULA.,J.

Sni

Crl.R.C.No.624 of 2017

01.02.2022

https://www.mhc.tn.gov.in/judis