Madras High Court
Devi vs State By Its on 5 July, 2023
Crl.O.P.No.22642 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.07.2023
CORAM
THE HONOURABLE MR. JUSTICE V. SIVAGNANAM
Crl.O.P.No.22642 of 2021
and
Crl.M.P.Nos.12318 & 12320 of 2021
Devi ... Petitioner
Vs
1.State by its
Inspector of Police
CCIW Police Station,
Thiruvannamalai,
Thiruvannamalai District.
(Crime No.8 of 2015)
2.Saravanan ... Respondents
Prayer: Criminal Original Petition has been filed under Section 482 Cr.P.C. to
call for the records relating to the case in C.C.No.293 of 2017 pending trial on
the file of the learned judicial Magistrate No.II, Thiruvannamalai District and
quash the same.
For Petitioner : Mr.K.G.Senthilkumar
For Respondent : Mr.V.J.Priyadarsana
No.1 Govt.Advocate (Crl.side)
For Respondent : No appearance
No.2
1/11
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Crl.O.P.No.22642 of 2021
ORDER
Challenging the case in C.C.No.293 of 2017 pending trial on the file of
the learned judicial Magistrate No.II, Thiruvannamalai District, the present
criminal original petition has been filed.
2.The learned counsel for the petitioner submitted that the petitioner is
the third accused in C.C.No.293 of 2017 on the file of the learned Judicial
Magistrate No.II, Thiruvannamalai. The petitioner is not an employee in C-
1245 Agricultural Co-operative Society, Arni and she was engaged on contract
basis and paid salary through Rainbow Security Service. The second
respondent conducted an enquiry with regard to misappropriation of
Rs.13,84,347/- in the Society and in the Sur-charge proceedings
Tha.Thee.No.03 of 2015-2016 dated 27.11.2015, held that one T.Karunakaran
and S. Kamalanathan are responsible for misappropriation of Rs.13,84,347/-.
The petitioner being not an employee in the Co-operative society and not
responsible for misappropriation of above said amount cannot be taken as an
accused along with the persons causing loss to the Society. Continuing the
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Crl.O.P.No.22642 of 2021
criminal proceeding in C.C.No.293 of 2017 is inappropriate. Therefore,
seeking to quash.
3.The learned Govt.Advocate (Crl.side) appearing for the first
respondent submitted that in the sur-charge proceedings, the second
respondent held that since the petitioner was not an employee in the Co-
operative Society, one T.Karunakaran and S.Kamalanathan are the responsible
persons for misappropriation of Rs.13,84,347/-.
4.I have considered the matter in the light of the submissions made by
the learned counsel for the petitioner as well as the learned Government
Advocate (Crl.side) appearing for the first respondent.
5.On verification of case records and materials, it reveals that based on
the complaint given by one Saravanan, Deputy Registrar of Co-operatives, the
respondent police registered a case against the accused persons in Crime No.8
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Crl.O.P.No.22642 of 2021
of 2015. After investigation, filed a final report against the accused persons for
the offences punishable under Sections 408, 109, 477 A, 120B, 471 & 467 IPC
and the case has been taken on file by the Judicial Magistrate No.II,
Thiruvannamalai in C.C.No.293 of 2017. In the C.C.No.293 of 2017, the
petitioner is the third accused and challenging the criminal proceedings on the
ground that she is not an employee in C-1245 Agricultural Cooperative
Society, Arni. It is not disputed that the petitioner is not an employee in C-
1245 Agricultural Co-operative Society, Arni and she was engaged in the
society through Rainbow Security service and paid salary also through it.
Further, it is also not disputed that in the surcharge proceedings finally held
that only Karunakaran and S.Kamalanathan are responsible for
misappropriation of Rs.13,84,347/- to the society. Further, the surcharge
proceedings, there is no finding against this petitioner for participation in
creating any false document and for taking an amount from the society. Under
such circumstances, a decision relied on by the Hon'ble Supreme Court in
Ashoo Surendranath Tewari Vs. The Deputy Superintendent of Police,
EOW, CBI and ors reported in (2020) 9 SCC 636 is taken into consideration
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Crl.O.P.No.22642 of 2021
of a case in Radheshyam Kejriwal V. State of West Bengal and Anr reported
in (2011) 3 SCC 581, in which, it is held that
"26. We may observe that the standard of proof in a
criminal case is much higher than that of the adjudication
proceedings. The Enforcement Directorate has not been able
to prove its case in the adjudication proceedings and the
Appellant has been exonerated on the same allegation. The
Appellant is facing trial in the criminal case. Therefore, in
our opinion, the determination of facts in the adjudication
proceedings cannot be said to be irrelevant in the criminal
case. In B.N. Kashyap [AIR 1945 Lah 23] the Full Bench
had not considered the effect of a finding of fact in a civil
case over the criminal cases and that will be evident from the
following passage of the said judgment: (AIR p. 27)
... I must, however, say that in answering the question, I have
only referred to civil cases where the actions are in personam
and not those where the proceedings or actions are in rem.
Whether a finding of fact arrived at in such proceedings or
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Crl.O.P.No.22642 of 2021
actions would be relevant in criminal cases, it is unnecessary
for me to decide in this case. When that question arises for
determination, the provisions of Section 41 of the Evidence
Act, will have to be carefully examined.
xxx xxx xxx
29. We do not have the slightest hesitation in accepting the
broad submission of Mr. Malhotra that the finding in an
adjudication proceeding is not binding in the proceeding for
criminal prosecution. A person held liable to pay penalty in
adjudication proceedings cannot necessarily be held guilty in
a criminal trial. Adjudication proceedings are decided on the
basis of preponderance of evidence of a little higher degree
whereas in a criminal case the entire burden to prove beyond
all reasonable doubt lies on the prosecution.
xxx xxx xxx
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Crl.O.P.No.22642 of 2021
31. It is trite that the standard of proof required in criminal
proceedings is higher than that required before the
adjudicating authority and in case the Accused is exonerated
before the adjudicating authority whether his prosecution on
the same set of facts can be allowed or not is the precise
question which falls for determination in this case.
Thereafter, the Hon'ble Supreme Court, after referring to
various judgments, held the following ratio;
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;
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Crl.O.P.No.22642 of 2021
(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
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 is on technical ground and not on
merit, prosecution may continue; and
(vii) In case of exoneration, however, on merits where
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Crl.O.P.No.22642 of 2021
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."
6.In view of the above, the petitioner is not an employee and not
responsible for the misappropriation of an amount of Rs.13,84,347/-. Further,
there is no material against this petitioner for prosecuting the criminal case.
Under these circumstances, continuing the criminal proceedings in
C.C.No.293 of 2017 against this petitioner is inappropriate. Therefore,
C.C.No.293 of 2017 on the file of the Judicial Magistrate No.II,
Thiruvannamalai against this petitioner is hereby quashed. Accordingly, the
criminal original petition is allowed. Consequently, connected miscellaneous
petitions are closed.
Index: yes/no
Internet:yes/no 05.07.2023
sms
To
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.22642 of 2021
1.Inspector of Police
CCIW Police Station,
Thiruvannamalai,
Thiruvannamalai District.
(Crime No.8 of 2015)
2.The learned judicial Magistrate No.II,
Thiruvannamalai District.
3.The Public Prosecutor,
High Court, Madras.
V. SIVAGNANAM, J.
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.22642 of 2021
sms
Crl.O.P.No.22642 of 2021
and
Crl.M.P.Nos.12318 & 12320 of 2021
05.07.2023
https://www.mhc.tn.gov.in/judis
