Madras High Court
Gobikrishnan vs The Inspector Of Police on 19 June, 2023
Crl.O.P.No.32356, 33221, 33220, 33219,
33223, 32361, 32365 & 32370 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.06.2023
CORAM
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
Crl.O.P.Nos.32356, 33221, 33220, 33219, 33223, 32361, 32365 & 32370
of 2019
and
Crl.M.P.Nos.18326, 18324, 18322, 17816, 17817, 17819, 17820, 17822,
17823, 17826 & 17827 of 2019
Gobikrishnan
... Petitioner
[in Crl.O.P.Nos.32356, 32361, 32365 & 32370 of 2019]
Lilly Flora ... Petitioner
[In Crl.O.P.Nos.33223, 33219, 33220 & 33221 of 2019]
Vs.
State rep. by
1.The Inspector of Police,
CCIW,
Thiruvannamalai District.
2.Doctor Amaladass. ... Respondents
[In all the Criminal O.Ps]
COMMON PRAYER: Criminal Original Petitions are filed under Section
482 of the Criminal Procedure Code to call for the records relating to the
Charge Sheet in CC.Nos.143, 144, 147, 175, 150, 146, 145 & 142 of 2019
on the file of the learned Judicial Magistrate No.II, Thiruvannamalai
District and quash the same.
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.32356, 33221, 33220, 33219,
33223, 32361, 32365 & 32370 of 2019
For Petitioners : M/s.D.Bennington
For Respondents : Mr.A.Damodaran,Addl. Public Prosecutor [R.1]
COMMON ORDER
These Criminal Original Petitions have been filed by the petitioners
seeking to quash the Final Reports in C.C.Nos.143, 144, 147, 175, 150, 146,
145 & 142 of 2019 on the file of the learned Judicial Magistrate No.II,
Thiruvannamalai District.
2. The case of the prosecution is that the petitioners along with the
other accused were responsible for having misappropriated the money by
abetting the Branch Manager one E.Prema and thereby caused loss to the de
facto complainant. Both the petitioners are shown as the 2nd accused in
their respective charge sheets. The said Branch Manager is shown as the 1st
accused in all these cases. The petitioners have been charged for the
offences under Sections 120(b), 409, 467, 408, 471 & 477 A IPC.
3. Heard Mr.D.Bennington, the learned counsel for the petitioners and
Mr.A.Damodaran, the learned Additional Public Prosecutor.
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.32356, 33221, 33220, 33219,
33223, 32361, 32365 & 32370 of 2019
4.(a) The learned counsel for the petitioners submitted that both the
petitioners were exonerated in the surcharge proceedings initiated against
them. In the said surcharge proceedings the explanations offered by the
petitioners were accepted by the Joint Registrar of Co-operative Society,
Thiruvannamalai who by the order dated 24.10.2017 held that the
petitioners were not liable for the alleged loss caused to the society since
they had acted on the instructions of the Branch Manager.
4(b). The learned counsel relied upon the orders passed by this Court
reported in (2020) MWN (Crl) 342 -P.Parimaladevan Vs. State by The
Inspector of Police and submitted that since the petitioners have been
exonerated under the proceedings under Section 87 of the Tamil Nadu Co-
operative Societies Act, (hereinafter referred to as 'the Act' for the sake of
brevity) it has to be inferred that the petitioners had not committed the
alleged offences. The learned counsel therefore submitted that the
impugned proceedings as against the petitioners are liable to be quashed.
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.32356, 33221, 33220, 33219,
33223, 32361, 32365 & 32370 of 2019
5.(a). The learned Additional Public Prosecutor on the other hand
submitted that surcharge proceedings and criminal proceedings are different
from each other. The learned Additional Public Prosecutor relied upon the
order passed by this Court reported in 2020 SCC Online Mad 2156 -
K.Venugopalan Vs. The Deputy Registrar of Co-operative Societies and
Others and in W.P.No.29942 of 2015 dated 29.07.2022 in which case the
accused were acquitted in the Criminal Proceedings and the Departmental
Proceedings against them were allowed to go on stating that the two
proceedings are independent of each other.
5.(b). The learned Additional Public Prosecutor also relied upon the
Full Bench Judgment of this Court reported in 2015 (3) LW. Page 513 -
S.Andiyannan Vs. The Joint Registrar, Co-operative Societies, Madurai
Region, Madurai & another and submitted that the surcharge proceedings
is independent of the criminal proceedings.
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.32356, 33221, 33220, 33219,
33223, 32361, 32365 & 32370 of 2019
6. This Court finds that there cannot be any dispute over the
proposition that these two proceedings are different from each other. An
acquittal in criminal proceedings would not automatically exonerate the
employee in departmental proceedings as the standard of proof in these two
proceedings are different. However, if the accused is exonerated in the
departmental proceedings then the approach has to be different. The
standard of proof in a criminal prosecution is much higher than in
departmental proceeding. It is settled law that the standard of proof which is
necessary to establish guilt in a criminal court is not required in a
disciplinary proceeding, where the decision is based on preponderance of
probabilities.
7. The Judgement of this Court reported in 2020 1 MWN (Cri) 342 -
P.Parimaladevan Vs. State by the Inspector of Police is squarely
applicable to the facts of the instant case. This court after analyzing the
various case laws on this subject has held as follows:-
" The aforesaid decisions are self explanatory and the
same principle has been reiterated in various other decisions of
this Court as well. As such, the over all legal position is that
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.32356, 33221, 33220, 33219,
33223, 32361, 32365 & 32370 of 2019
when an employee of the Society is found liable for Supervisory
lapse, the same will not constitute any criminal action against
him. Likewise, if such an employee has been exonerated in the
proceedings under Section 87 of the said Act, it has to necessarily
be implied that he had neither misappropriated nor fraudulently
retained the money or other property, nor is guilty of breach of
trust or willful negligence. The offences for which the petitioner
has now been charged with, are in effect, the very same overt acts
for which he has been exonerated in the enquiry under Section 87
of the said Act. "
8. In the instant case, the petitioners have been exonerated in the
proceedings under Section 87 of the Act. The relevant observations in
respect of one transaction which is similar to all the other cases is extracted
here under for better understanding:-
"jpUkjp/E.gpnukh fpisnkyhsh; jpUtz;zhkiy
khtl;l kj;jpa Tl;Lwt[ t';fp ypl;/. ntl;;ltyk; fpis
jpU/v!;/nfhgpfpuco;zd; fhrhsh; Mfpnahh;fshy;
,f;fpisf;F Vw;gl;l epjpapHg;g[
epjpapHg;g[ bjhif ==== U:/11.76.196
tN:yhd bjhif ==== U:/40.700
epYit bjhif ==== U:/11.35.496
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.32356, 33221, 33220, 33219,
33223, 32361, 32365 & 32370 of 2019
nkw;go epjpapHg;g[ bjhiff;F ,th;fs; ,UtUk; KG
bghWg;ngw;f ntz;oatuhfpwhh;fs;/
jpU/v!;/nfhgpfpuco;zd; fhrhsh; vd;gth; jdJ
vGj;JK:yk; kw;Wk; neuo thf;FK:yj;jpy; jhk; t';fp
gzpf;F g[jpjhf njh;t[ bra;ag;gl;L gzpapy; vt;tpj
mDgtKkpd;wp fpisnkyhsh; ,l;l gzpapid nkyhhpd;
neuo fz;fhzpg;gpy; gzpahw;wp te;Js;shh;/ nkyhsh;
mth;fshy; mDkjpf;fg;gl;l nrkpg;g[ fzf;F gw;Wr;rPl;od;
go nrkpg;g[ fzf;fpw;Fhpa egh;fs trnk bjhif
gl;Lthlh bra;ag;gl;Ls;sJ/ vdnt ,e;epjpapHg;g[
,dj;jpypUe;J ,tiu tpLtpf;fyhk; vdf; fUjp mt;thnw
tpLtpj;J Mizaplg;gLfpwJ/ nkYk; jpUkjp/ E.gpnukh
fpisnkyhsh ,t;twptpg;g[ bjhlh;ghd vGj;JK:yk; kw;Wk;
neuo thf;FK:yk; Vjk; mspf;fhj epiyapy; bjhlh;g[ila
Mtz';fs; ed;F ftdKld; ghprPypf;fg;gl;l tifapy;
,e;ejpapaHg;gpw;F ,tnu KgbghWg;ghthh; vdt[k;
t';fpf;F epjpapHg;g[ bjhifapapid brYj;jg;gLk; ehs;
tiu chpa tl;oa[ld; ,thplkpU;J jz;lj;jPh;it K:yk;
tNy; bra;a Mizaplyhk; vdf; fUjp mt;thnw
Mizaplg;gLfpwJ/ "
The very same observations have been made in respect of the petitioner in
Crl.O.P.Nos.33223, 33219, 33220 & 33221 of 2019.
9. Therefore, this Court is of the view that the impugned prosecution
as against the petitioners are liable to be quashed and the petitioners are
entitled to succeed.
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.32356, 33221, 33220, 33219,
33223, 32361, 32365 & 32370 of 2019
10. Accordingly, these Criminal Original Petitions are allowed.
Consequently, connected Criminal Miscellaneous Petitions are closed.
19.06.2023
Index : Yes/No
Internet : Yes/No
Neutral Citation :Yes/No
shr
To,
1. The Inspector of Police,
CCIW,
Thiruvannamalai District.
2. The Judicial Magistrate No.II, Thiruvannamalai District.
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.32356, 33221, 33220, 33219,
33223, 32361, 32365 & 32370 of 2019
SUNDER MOHAN. J,
shr
Crl.O.P.No.32356, 33221, 33220, 33219, 33223, 32361, 32365 & 32370
of 2019
and
Crl.M.P.No.18326, 18324, 18322, 17816, 17817, 17819, 17820, 17822,
17823, 17826 & 17827 of 2019
19.06.2023
https://www.mhc.tn.gov.in/judis
