Madras High Court
M.Prabakar vs State Rep. By on 21 June, 2022
Crl.O.P.(MD)No.2054 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21/06/2022
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.O.P.(MD)No.2054 of 2022
and
Crl.MP(MD)NO.1517 of 2022
1.M.Prabakar
2.N.Muthulakshmi : Petitioners/A1 and A2
Vs.
1.State rep. By
Inspector of Police,
Vigilance and Anti Corruption,
Madurai. : R1/Complainant
2.T.Suriyakala,
Inspector of Police,
Vigilance and Anti Corruption,
Madurai. : R2/De-facto Complainant
Prayer: Criminal Original Petition is filed under
Section 482 Cr.P.C., to call for the records in Crime No.18
2019 on the file of the 1st respondent and quash the same.
For Petitioners : Mr.AR.L.Sundaresan
Senior Counsel
for Mr.M.Ravi
For Respondents : Mr.R.Meenakshi Sundaram
Additional Public Prosecutor
1/14
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Crl.O.P.(MD)No.2054 of 2022
O R D E R
This criminal original petition is filed seeking
quashment of the case in Crime No.18 2019 on the file of
the 1st respondent.
2.The case of the prosecution in brief:-
A suo motu FIR has been registered, on information
with the following averments:- A1/Prabakar was found to be
in possession of pecuniary resources and properties in his
name and his wife name, which are beyond their known source
of income. The first petitioner is a native of
Ramanathapuram District, hailing from a middle class
family, his father is a retired Block Development Officer
and his mother namely M.Mariyammal was the house wife. They
had four sisters and two brothers. All are married and
settled. The first marriage of A1 ended in divorce. Later,
he married another lady. Through the second wife, he had
one daughter by name Vaani Doshikka. His wife and daughter
are not having any independent source of work. He was
working as Principal of Regional Institute of Rural
Development, Krishnagiri in the year 2009, as Project
Officer in Theni District in the year 2009-2011, as Project
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Crl.O.P.(MD)No.2054 of 2022
Director, DRDA, Madurai in the year 2011-2012, as Project
Director, DRDA, Sivagangai in the year 2012, as Joint
Director of Rural Development, DRDA Virudhunagar in the
year 2012-2015, as General Manager (Projects) TAHDCO
Chennai in the year 2015-2016, as Project Director, DRDA
Dindigul in the year 2017, as General Manager Aavin in the
year 2017-2018 in Vellore District. Now, he is working as
General Manager in Aavin Department, Karaikudi from
18/08/2018. It has been brought to the notice that the
first petitioner had purchased many vacant sites in Madurai
and Ramnad District in the name of his second wife
N.Muthulakshmi (A2) and his mother Mariayammal. Later,
Mariayammal settled those properties in his name. He also
constructed a luxury hotel with restaurant called 'VAANI
VILLAS' comprised in 14 luxurious rooms, conference hall
and a restaurant, behind the Thiyagaraja Engineering
College. Apart from that, he has also put up a complex
called 'DOSHKKA Complex' in the name of his wife; purchased
four wheelers in the name of his wife and running a travels
in the name of DOSHIKKA'S TOURS AND TRAVELS and also
started a small ready-made shop at Villapuram Housing Board
Colony in a rented building called Doshikka's Collections.
So by this way, he acquired assets between 01/06/2010 and
31/08/2016. As per the enquiry, it is revealed that the
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Crl.O.P.(MD)No.2054 of 2022
value of the disproportionate assets comes to Rs.
4,74,59,900/-, which means the percentage of
disproportionate asset is 110%. This will amount to
criminal misconduct under section 13(2) r/w 13(1)(b) of the
Prevention of Corruption Act 1988. So, it requires thorough
and detailed investigation.
3.The second petitioner is the wife of the first
petitioner/A1. The first petitioner/A1 purchased the
properties in the name of his wife namely A2. It is also
disproportionate to the known source of income and A2 also
committed the offences punishable under section 109 IPC r/w
13(2) and 13(1)(b) of the Prevention of Corruption Act,
1988. Investigation has been undertaken and it is pending.
4.Pending investigation, this petition came to be
filed by the petitioners on very many grounds.
5.A detailed counter affidavit has been filed by the
respondents and re-joinder has also been filed.
6.Now let us straightaway go to the issue. The main
ground, on which this petition came to be filed is that
disciplinary proceedings has been initiated against A1. He
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Crl.O.P.(MD)No.2054 of 2022
was exonerated. Now on the very same set of allegations,
criminal prosecution namely the investigation should not be
permitted to undertake. This is the only point to be
decided in this matter.
7.According to him, because of certain departmental
officials, false allegations were levelled against him and
his wife. The Government has constituted a fact finding
committee launched by the Social Audit Society of Tamil
Nadu, to probe into the allegation and complaint. It gave a
detailed report through the Principal Secretary to the
Government Rural Development and Pt. Raj Deptt, Chennai,
dated 10/11/2016. In the enquiry report, it was found that
A2 has shown her source of income, since she was working as
faculty member in a private Collage at Pudukottai and in
Bangalore and only with the support of her father, she
started a business and during that process, she has also
availed loans. She has also submitted the income tax
returns. Apart from that, she is also paying Wealth Tax. So
after finding all these things, the fact finding authority
has submitted a report stating that A1 has not held beyond
his legitimate scope of income and that report was accepted
by the Government and passed necessary orders in G.O(D)No.
494 issued by the Rural Development and Panchayat(E1)
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Crl.O.P.(MD)No.2054 of 2022
Department, dated 28/09/2017 and he was placed in service
and about to retire in May 2023 and only at the fag end of
his service, this present FIR has been registered much
after the period of three years. This is the sum and
substance of the argument of the learned Senior counsel,
who is appearing for the first petitioner. He would further
submit that even after a lapse of three years, the
investigation has not been completed so far and at the
eleventh hour of his retirement, he was put in harassment.
During the course of investigation, the income of the
mother and wife has not been properly taken into account.
Similarly, the income of the accused persons during 2016
till 2018 was not correct.
8.Per contra, it is the submission of the learned
Additional Public Prosecutor to the effect that the
disciplinary proceeding was initiated two years prior to
the registration of the FIR. Not every aspect has been
taken into account during the course of departmental
proceedings and no detailed enquiry was conducted and the
fact finding authority has submitted a report only on the
basis of the affidavit and the Vigilance Commissioner
permitted the investigation process, on 18/03/2019 and the
explanation has been sought from the accused persons.
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Crl.O.P.(MD)No.2054 of 2022
During the course of investigation, it was found that
during 2017-2018, the crime has been committed by the
accused.
9.In reply to this argument of the learned Additional
Public Prosecutor, the learned Senior counsel appearing for
the petitioners would submit that the entire documents have
been perused by the fact finding authority and no progress
has been made in the investigation and during the course of
investigation also, no new material facts have been
collected, apart from the materials that have been placed
at the time of departmental proceedings. So, this is the
sum and substance of the rival parties. With these back
grounds, let us go to the issue as to whether the criminal
proceedings can be quashed on the basis of the report of
the fact finding authority in a departmental proceedings.
10.The learned Senior counsel appearing for the
petitioners would rely upon the judgment in the case of
Ashoo Surendranath Tewari Vs. The Deputy Superintendent of
Police, EOW, CBI & another (2020)9 SCC 636 for the purpose
of argument that the standard of proof in a criminal case
is much higher than that of the adjudication proceedings.
When the adjudication proceedings itself went in favour of
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Crl.O.P.(MD)No.2054 of 2022
the accused, the criminal prosecution and proceedings,
which requires a stronger proof should not be permitted to
continue.
11.The learned Additional Public Prosecutor, for the
above said judgment, has quoted the observation in the case
of P.S Rajya Vs. The State of Bihar (1996) 9 SCC 1. In para
38, principles have been set out as follows:-
“38.The ratio which can be culled out
from these decisions can broadly be stated
as follows:-
(i)Adjudication proceedings and
criminal prosecution can be launched
simultaneously;
(ii)Decision in adjudication
proceedings is not necessary before
initiating criminal prosecution;
(iii)Adjudication proceedings and
criminal proceedings are independent in
nature to each other;-
(iv)The finding against the person
facing prosecution in the adjudication
proceedings is not binding on the
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Crl.O.P.(MD)No.2054 of 2022
proceeding for criminal prosecution;
(v)Adjudication proceedings by the
Enforcement Directorate is not prosecution
by a competent court of law to attract the
provisions of Article 20(2) of the
Constitution or Section 300 of the Code of
Criminal Procedure.
(vi)The finding in the adjudication
proceedings in favour of the person facing
trial for identical violation will depend
upon the nature of finding. If the
exoneration in adjudication proceedings in
on technical ground and not on merit,
prosecution may continue; and
(vii)In case of exoneration, however,
on merits whether the allegation is found
to be not sustainable at all and the person
held innocent, criminal prosecution on the
same set of facts and circumstances cannot
be allowed to continue. The underlying
principle being the higher standard of
proof in criminal cases.”
12.After deducing the principles in para 39, it has
been held as follows:-
“39.In our opinion, therefore, the
yardstick would be to judge as to whether
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Crl.O.P.(MD)No.2054 of 2022
the allegation in the adjudication
proceedings as well as the proceeding for
prosecution is identical and the
exoneration of the person concerned in the
adjudication proceedings is on merits. In
case it is found on merit that there is no
contravention of the provisions of the Act
in the adjudication proceedings, the trial
of the person concerned shall be an abuse
of process of the court.”
From our point of view, para 38(vii) is
important and if the High Court had
bothered to apply this parameter, then on a
reading of the CVC report on the same
facts, the appellant should have been
exonerated.”
13.So by applying the above said principles, the
accused was discharged from the criminal proceedings. The
point, which has been stressed by the Hon'ble Supreme Court
is that the allegation in the adjudication process as well
as the criminal proceedings must be identical in nature,
the adjudication must have been rendered on merits, then
the accused can be discharged. But in that case, the
Central Vigilance Commissioner, while exercising the power
under section 197 Cr.P.C has gone into the facts as well as
the report of the competent authority on merits. On going
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Crl.O.P.(MD)No.2054 of 2022
through the entire records only, the Central Vigilance
Commissioner refused the sanction. But here, as submitted
by the learned Additional Public Prosecutor, the Vigilance
Commissioner has permitted the investigation process by
order, dated 18/03/2019. But the report of the fact finding
committee, dated 10/11/2016 was not placed before the
Commissioner. Whether this is enough for quashing the
criminal proceedings is the point, which requires to be
answered. The complaints have been sent by unknown persons.
So, those complainants could not known by the facts finding
committee that is the first point.
14.The second point is that the allegation of
disproportionate to the known source of income of A1 and
his wife. It is seen that it has been decided on the
affidavit filed by A2 before the fact finding authority.
The fact finding authority has stated that he has perused
some of the documents produced by A1 with regard to the
business run by the wife. Apart from the properties, it
appears that no detailed enquiry has been undertaken just
like that of the investigation, which is now undertaken.
So, as rightly pointed out by the learned Additional Public
Prosecutor, allegation has been decided by the fact finding
authority only on the basis of the affidavit submitted by
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Crl.O.P.(MD)No.2054 of 2022
A2 and some of the documents that have been produced by A1.
So, I am of considered view that this itself is enough for
the investigation process be carried forwarded.
15.When the allegation of delay has been made by the
learned Senior counsel appearing for the petitioners, the
entire CD file has been called for and produced. From the
perusal of the CD file, I have convinced that still
correspondence is going on between the Investigating
officer and the relevant Department.
16.It has also been submitted by the learned
Additional Public Prosecutor that within three months, the
investigation process will be completed. So on the basis of
the delay also, I am of the considered view that the
criminal investigation process should not be stalled.
However, recording the undertaking given by the Additional
Public Prosecutor, I am of the considered view that I find
no merit in this matter and accordingly, it is dismissed.
17.In the result, this criminal original petition is
dismissed. But however, a direction is issued to the first
respondent to complete the investigation process within a
period of three months from the date of receipt of a copy
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Crl.O.P.(MD)No.2054 of 2022
of this order, as undertaken by the learned Additional
Public Prosecutor and file a final report before the
concerned court. The compliance report must be submitted to
this court forthwith.
18.With the above said direction, this criminal
original petition is dismissed. Consequently connected
Miscellaneous Petition is closed.
21.06.2022
Internet:Yes/No
Index:Yes/No
er
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.
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Crl.O.P.(MD)No.2054 of 2022
G.ILANGOVAN,J.,
er
To,
1.The Inspector of Police,
Vigilance and Anti Corruption,
Madurai.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
Crl.O.P.(MD)No.2054 of 2022
21/06/2022
https://www.mhc.tn.gov.in/judis
