Madras High Court
D.Chittaranjan vs State Rep By on 5 January, 2022
Crl.R.C.No.555 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.01.2022
CORAM:
THE HON'BLE Ms.JUSTICE R.N.MANJULA
Crl.R.C.No.555 of 2015
D.Chittaranjan
... Petitioner
Vs.
State Rep by
Inspector of Police,
C.C.I.W/C.I.D, Thiruvellore.
... Respondent
Criminal Revision filed under Sections 397 and 401 Cr.P.C praying to
allow this Revision by setting aside the conviction and sentence confirmed by
the IV Addl. Dist. & Sessions Court at Ponneri in C.A.No.34/2009 dated
13.4.2015 on the order passed by the learned Judicial Magistrate II, Ponneri
dated 24.7.2009 in C.C.No.76 of 1999.
For Petitioner : Mr.S.Karthikeyan
For Respondent : Mr.A.Gopinath
Government Advocate (Crl. Side)
*****
ORDER
This Criminal Revision has been preferred challenging the judgment of
the learned IV Additional District and Sessions Judge, Ponneri dated
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13.04.2015 made in C.A.No.34 of 2009, which confirmed the judgment of the
learned Judicial Magistrate-II, Ponneri dated 24.07.2009 made in C.C.No.76 of
1999.
2. The petitioner/second accused is the Secretary of Adhi Diravida Brick
Chamber Labourers Co-Operative Society at Thathamanji Village. The first
accused, who is no more now, was the President of the said Society. The case
of the prosecution is that the accused misappropriated a sum of Rs. 15,538/- by
falsifying the accounts of the Society under various heads and by preparing
vouchers and presenting cheques to the tune of Rs.15,538/- and they committed
the offence under Sections 406, 408 r/w 109 and 477A IPC.
3. On the complaint given by PW1-Ramalingam/General Manager of
Adhi Diravida Brick Chamber Labourers Co-Operative Society on 04.12.1996
before the Commercial Crime Investigation Wing, a case has been registered in
Crime No.1 of 1997 by PW5/Sornavelayutham. The complaint was made on
the basis of the enquiry report submitted by PW3-Enquiry Officer. According
to the Enquiry Officer/PW3, the enquiry was ordered to be conducted on
18.11.1993 in RC.No.913/IC 3/93 dated 18.11.1993 by the General Manager,
Industries and Commerce, District Industries Centre, Guindy. The enquiry was
completed on 09.08.1994 and the report had also been submitted. Only on the
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Crl.R.C.No.555 of 2015
basis of the said report (Ex.P30), the complaint has been given by PW1.
PW5/Sornavelayutham, Inspector of Police, after registering the FIR, took up
the case for investigation, seized various Registers and records maintained by
the Society. After completing his investigation, he filed the charge sheet against
the accused 1 and 2 for the offences under Sections 406, 408 read with 109 and
477(A) IPC.
4. According to the final report, the total amount found to have been
misappropriated is Rs.15,538/-. After the case was taken on file and on being
satisfied with the materials available on record, the learned Trial Judge framed
charges against the accused under Sections 408, 406 r/w 109 and 477A IPC.
When the accused were questioned, they pleaded innocence and claimed to be
tried.
5. During the course of the trial, on the side of the prosecution 5
witnesses were examined as PW1 to PW5 and 32 documents were marked as
Exs.P1 to P32. On the side of the defence, no witness was examined and no
document was marked.
6. At the conclusion of the trial and on considering the evidence available
on record, the learned Trial Judge found the accused guilty for the offence under
Sections 406, 408 read with 109 and 477(A) IPC and convicted and sentenced
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Crl.R.C.No.555 of 2015
the accused as under:-
Accused Conviction Punishment
406 IPC To undergo 2 years Rigorous
Imprisonment and to pay a fine of
Rs.5000/- in default 6 months
A1 Simple Imprisonment
477 (A) IPC To undergo 2 years Rigorous
Imprisonment and to pay a fine of
Rs.5000/- in default 6 months
Simple Imprisonment
408 R/W 109 IPC To undergo 2 years Rigorous
Imprisonment and to pay a fine of
A2 Rs.5000/- in default 6 months
Simple Imprisonment
477 (A) IPC To undergo 2 years Rigorous
Imprisonment and to pay a fine of
Rs.5000/- in default 6 months
Simple Imprisonment
7. It is reliably learnt that the first accused died subsequent to the
judgment of the trial Court. The appeal preferred by the second accused in
C.A.No.34 of 2009 was dismissed on 13.04.2015 by confirming the judgment
of the trial Court. Aggrieved over that, the second accused has preferred this
Revision.
8. Heard the learned counsel for the Revision petitioner and the learned
Government Advocate (Crl. Side) appearing on behalf of the respondent.
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Perused the entire materials available on record.
9. The learned counsel for the revision petitioner submitted that the
enquiry contemplated under Section 81(4) of Tamil Nadu Cooperative Societies
Act, 1983 should have been completed within a period of three months or
within a maximum period of six months on extension.
10. In the case on hand, the Enquiry Officer has initiated the enquiry on
18.11.1993 and completed the investigation on 09.08.1994 and submitted his
report; the above enquiry proceedings are in violation of the statutory
provisions, which is time bound; as per the enquiry report, the total amount
misappropriated is found to be Rs.3,44,198.20/-; but at the conclusion of the
investigation by the police, the total amount misappropriated was found to be
Rs.62,153/-; so far as this case is concerned, the amount misappropriated is
found to be Rs.15,538/-; the major contradiction between the report of the
Enquiry Officer and the charge sheet filed by the police would itself make the
case of the prosecution doubtful; the petitioner/second accused was holding
Additional Charge as the Secretary for the subject Society and he was no way
responsible for the criminal activities that might have occurred in the Society;
the Courts below have omitted to give due credence to the above aspects placed
before them and proceeded to convict the petitioner wrongly.
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11. The learned Government Advocate(Crl. Side) appearing for the
respondent submitted that the Investigation Officer has filed charge sheet on the
basis of the records available; the variation between the enquiry report and the
charge sheet will not falsify the case of the prosecution; even though Section 81
(4) of Tamil Nadu Cooperative Societies Act, 1983 contemplates a maximum
time limit of six months for filing the Enquiry Report that could have its impact
only for the enquiry proceedings; so far as the criminal offences are concerned
the limitation is governed only under Section 468 Cr.P.C; the petitioner/second
accused being the Secretary of a Society, can be held responsible for the
misappropriation found to have been committed in the Society and hence, this
Revision should be dismissed.
12. Point for consideration:-
Whether the conviction and sentence imposed on the accused
for the offences under Section 406, 408 read with 109 and 477(A)
IPC by the learned Sessions Judge based on the materials available on
record is fair and proper?
13. There are some fundamental facts, which are not in dispute. The
petitioner/second accused was the Secretary of the subject Society and he was
in-charge of the Society only by holding an additional charge. It appears from
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the evidence of PW3-Venkatesan that he was appointed as an Enquiry Officer
and initiated enquiry on 18.11.1993 and submitted his report on 09.08.1994.
The total time taken by the Enquiry Officer to submit his report was nearly nine
months. As per Section 81(4), the enquiry report should be normally submitted
within a period of three months. However, for appropriate reasons, the time can
be extended for a further period of three months and so the enquiry report
should be submitted within the maximum outer limit of six months. The
evidence of PW3 would show that he was aware of the limitation prescribed
under Section 81(4), but he has stated in his evidence that he has not requested
any extension of time for filing his report belatedly.
14. For the purpose of convenience, the above provision is extracted as
below:-
"81. Inquiry
(4) The inquiry shall be completed within a period of three
months from the date of ordering the inquiry or such further
period or periods not exceeding three months at a time as the next
higher authority may permit provided that such extended periods
shall not exceed six months in the aggregate."
15. It is the patent admission of PW3/Enquiry Officer that enquiry report
was filed beyond a period of six months, which is not legal. Even without the
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Crl.R.C.No.555 of 2015
admission of PW3, it is clear from the law that the enquiry report is in violation
of Section 81(4). When the above technical point was raised before the trial
Court, the learned trial Judge observed that Section 81(4) has no relevance to
the criminal proceedings initiated against the accused, in view of Section 468
Cr.P.C, which only prescribes the period of limitation for different category of
offences.
16. The learned counsel for the petitioner stressed on the point that the
criminal proceedings would also lose its value if it is taken on the basis of an
enquiry report, which has been filed beyond the period of six months. In
support of his contention, he relied on the following decisions of this Court:-
(I) Kannan Vs. State, CCIWCID, Coimbatore dated 21.06.2007;
(II)Thambiraj Vs. State, CCIWCID, Karur dated 29.10.2010;
(III)Govindan Vs. State, CCIWCID, Vellore dated 25.11.2013.
17. In the above cases, the learned Single Judges of this Court have held
that in view of the delay in filing the enquiry report, the criminal proceedings
would get vitiated. Section 81(4) does not directly govern the criminal
proceedings. The limitation for the criminal offences has been prescribed only
under Section 468 Cr.P.C. It is seen from the records that the above point was
canvassed by the petitioner/second accused before the lower Appellate Court
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Crl.R.C.No.555 of 2015
also. However, the learned trial Judge overlooked the same, but observed that
the petitioner had raised the said point for the first time only before the
Appellate Court. But the records would show that the learned trial Judge
himself has dealt with the above points and made his observations on the same.
18. Be that as it may, the fact remains that the complaint, which is the
origin of this criminal proceedings lodged against the accused finds its basis
only from the enquiry report filed by PW3. Apart from the above technical
point, it is also seen that there are some factual difference in the case of the
prosecution and that it is not denied by the prosecution. The enquiry report
reveals that the total amount misappropriated was to the tune of
Rs.3,44,198.20/-. However, the investigation revealed that the amount
misappropriated in all the three cases is to the tune of Rs.62,163/-. The Courts
below had observed that despite there might be variations with regard to the
quantum of the misappropriated amount, the fact remained that some amount
was found to be misappropriated and hence, the final report of the police cannot
be ignored. But this variation would show that there were some huge
exaggeration in the allegations made against the accused and that would create
a doubt. No explanation has been offered by the prosecution witnesses as to
why there was a huge difference in the quantum of misappropriation found
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Crl.R.C.No.555 of 2015
between the enquiry report and the final report. Had it been satisfactorily
explained in the final, then report there will not be any scope for doubt. So the
benefit of doubt which arose due to the above contradiction – should go in
favour of the accused.
19. The Special Officer who was appointed as the Enquiry Officer
conducted the enquiry for nine months and he had come out with the finding
that there was a misappropriation for a sum of Rs.3,44,198.20/-. No doubt the
enquiry report would have served as a material record for the purpose of
investigation. If the Investigation Officer had opted not to accept the enquiry
report, the whole case would have got closed. If the Investigator had preferred
to accept the report partially, then he ought to have given some explanation as
to the quantum as stated above.
20. Further, the Enquiry Officer, who was examined as PW3 has stated in
his evidence that he was also enquired by the police during investigation and he
had given his statement only based upon his enquiry report. As it has been
already averred that there is gross variation in the quantum of misappropriated
amount in the enquiry report (Ex.P30). And he was not enquired as to the
difference in the amount of misappropriation-and why it did not tally during the
investigation. The explanation in this regard is important because of the fact
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that the enquiry report had been filed beyond the statutory period and without
any request or approval for extension of time. In this background of the facts,
it cannot be denied that the above gap in the investigation would strike the case
of the prosecution at its route by creating huge doubt.
21. The second accused was responsible for the affairs of the Society, but
he was holding the additional charge. So, he could not have made himself
always available in the Society. Hence, it would not have been possible to
check the day-to-day affairs of the Society or to verify the records on a daily
basis. PW3 has stated in his evidence that the second accused cannot be held
directly responsible for the criminal proceedings because he could not be
instrumental for any of the illegalities occurred in the Society. The above
evidence of PW3 assumes significance in the other attending circumstances of
the case, which has been discussed above. It is to be noted that the very
complaint was filed by PW1 only on the basis of the enquiry report. If the
enquiry report itself looses its legality and becomes invalid due to the violation
of Section 81(4) of Tamil Nadu Cooperative Societies Act and the final report
lacks clarity as to the difference in the figures of the misappropriated amount
that would only render the investigation process incomplete and materially
irregular.
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22. But it is seen that the Courts below have omitted to take into
consideration of the contradictions in the fundamental facts unearthed during the
investigation and lack of clarity in respect of the difference in figures etc., the
factual and legal issues ought to have been holistically appreciated by the
Courts below in order to rely the case of the prosecution. Had that exercise was
done the doubts in the case of prosecution could not have been overlooked and
the accused would not have been deprived to get the benefit of the same.
23. In view of the above reasons, I feel that the judgment of the Courts
below warrants interference.
24. In the result, this Criminal Revision is allowed and the judgment of
the learned IV Additional District and Session Judge at Ponneri in C.A.No.34 of
2009 dated 13.4.2015 is hereby set aside.
05.01.2022
Index: Yes/No
Speaking / Non Speaking Order
kmi
To
1.The IV Addl. District & Sessions Judge,
Ponneri.
2.The Judicial Magistrate-II,
Ponneri.
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Crl.R.C.No.555 of 2015
3.The Inspector of Police,
C.C.I.W/C.I.D,
Thiruvellore.
4.The Public Prosecutor,
High Court of Madras,
Chennai-104.
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Crl.R.C.No.555 of 2015
R.N.MANJULA, J
kmi
Crl.R.C.No.555 of 2015
05.01.2022
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