Madras High Court
M.Thangavel vs The State Rep. By on 24 May, 2023
Crl.R.C.Nos.316, 384 & 451 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.05.2023
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Orders Reserved On Orders Pronounced On
10.11.2022 24.05.2023
Crl.R.C.Nos.316, 384 & 451 of 2022
and Crl.M.P.Nos.3926 & 4656 of 2022
M.Thangavel ... Petitioner
in Crl.R.C.No.316/2022
P.Vijayalakshmi ... Petitioner
in Crl.R.C.No.384/2022
M.Marichamy ... Petitioner
in Crl.R.C.No.451/2022
Vs.
The State Rep. by
Inspector of Police,
CBI/ACB,
Chennai. ... Respondent
in all Petitions
COMMON PRAYER: Criminal Revision Petitions filed under Sections
397 r/w. 401 of Criminal Procedure Code, to set aside the order passed in
Crl.M.P.No/2564 of 2020, Cr.M.P.No.6927 of 2019 and Cr.M.P.No.7326 of
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2018 in C.C.No.10 of 2018 dated 07.02.2022 passed by learned Principal
Special Judge for CBI Cases, VIII Additional City Civil Court, Chennai and
discharge the petitioners.
For Petitioner
in Crl.R.C.No.316/2022 : Mr.K.Shankar
For Petitioner
in Crl.R.C.No.384/2022 : Mr.B.Kumar
Senior Counsel
for Mr.S.Ramachandran
For Petitioner
in Crl.R.C.No.451/2022 : Mr.R.Rajarathinam
for Mr.G.Muthukumar
For Respondent
in all Crl.RCs. : Mr.K.Srinivasan
Special Public Prosecutor
for CBI Cases
COMMON ORDER
The petitioners M.Thangavel/A1, P.Vijayalakshmi/A2 and
M.Marichamy/A3 in C.C.No.10 of 2018 pending on the file of the learned
Principal Special Judge for CBI Cases, VIII Additional City Civil Court,
Chennai challenging the dismissal of discharge petitions in
Crl.M.P.No/2564 of 2020, Cr.M.P.No.6927 of 2019 and Cr.M.P.No.7326 of
2018 by a common order dated 07.02.2022, filed the above revision
petitions.
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2.Since the defence and grounds raised by the petitioners are similar,
a common order is being passed. For the sake of convenience and clarity,
the petitioners are referred to as per their rankings in the Calendar Case.
3.A case in RC MA1 2016 A 0048 was registered by the CBI/ACB,
Chennai on 27.12.2016 against A1 and A2 for the offence under Section
109 IPC and Section 13(2) read with 13(1)(e) of Prevention of Corruption
Act, 1988 [hereinafter referred to as 'PC Act, 1988']. A1 was working as
Section Supervisor, Employees Provident Fund Organization [EPFO],
Regional Office, Chennai, A2 was working as Senior Accountant General,
Grade II in the Office of the Accountant General [AGs Office], Teynampet,
Chennai and A3, younger brother of A1 and brother-in-law of A2 started a
firm in the name of M/s.Efficient Management Consultant [EMC] in the
year 2004, the same was subsequently converted into a partnership firm
including one T.Rahul, Son of A1 and A2, E.Kanniyammal, mother-in-law
and mother of A1 and A2. Further, A3 along with one D.Ravichandran,
friend of A1 started a partnership firm in the name of M/s.EMC HR
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Solutions and these firms were functioning in CIT Nagar premises of the
accused and providing Pay roll, Consultant for remittance of EPI, ESIC,
placement training and HR related statutory consultancy services, etc.
Initially in the FIR, the check period was taken from 01.12.2011 to
09.12.2016, during investigation it was found that most of the properties
were acquired during the year 2010 and hence, the check period was taken
from 23.07.2010 to 09.12.2016. At the beginning of check period as on
23.07.2010, both A1 and A2 possess movable and immovable assets to the
tune of Rs.31,94,408.24/- and at the end of the check period as on
09.12.2016, they were in possession of movable and immovable assets to
the tune of Rs.2,55,73,648.73/-. During the check period the income of
both A1 and A2 was to the tune of Rs.1,56,21,341.90/- and the expenditure
during the check period was to the tune of Rs.1,14,68,288.22/-. Hence, at
the end of the check period it was found that A1 and A2 amassed
disproportionate asset in their name to the tune of Rs.1,82,26,186.81/- i.e.,
116.67%. It was also found that various transactions were made by A1 and
A2 in purchasing plot at Old No.71, New No.28, 1 st Cross Street, CIT
Nagar, Chennai – 35 measuring 1302 sq.ft. For Rs.93 lakhs and
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construction was made by A1 and A2. Further A2 provided incorrect
particulars to her Department regarding this transaction. The accused were
given opportunity to give explanation or satisfactory account for the above
mentioned disproportionate asset but they could not offer satisfactory
explanation, hence they committed an offence of abetment and criminal
misconduct under Section 109 IPC and Section 13(2) read with 13(1)(e) of
PC Act, 1988. On conclusion of investigation, CBI recorded the statement
of 92 witnesses and filed 333 documents to support the charges framed
against A1 to A3.
4.The contention of learned counsel for A1 is that A1 is not having
any movable or immovable property in his name. In the final report it is
indicated that A1 paid Rs.50,000/- by way of cheque dated 31.08.2010 to
L.W.9/Kalaiselvan. Apart from it, A1 also made payments towards School
fees and College fees for his children from the joint account of A1 and A2.
A2, his wife is also a Government Servant, both are having independent
income and they have right to possess independent properties. He further
submitted that possession of house in CIT Nagar is in the name of A2. The
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final report is self contradictory on the allegations for the overt act against
A1 to A3. A3 is having independent business and have been regularly filing
his income tax returns and the Income Tax Department have not raised any
objections. There is no evidence in the entire charge sheet, both oral and
documentary to satisfy the legal requirement for abetment and also for
possession of disproportionate asset. The CBI intentionally making wrong
interpretation as though there were receipt of monies by A1 in his bank
account from his brother/A3. The transfer of money is being projected
against A1 not only in this case and in two other cases in which he is being
prosecuted, namely, C.C.No.8 of 2019 and C.C.No.37 of 2017. For the
same transaction, A1 is being prosecuted in three cases which is against the
principle of Section 218 of Code of Criminal Procedure [Cr.P.C.]. It is
further submitted that A1 is not in possession of immovable or movable
assets in his name. The income of A3 has been projected and calculated as
though it is an asset of A1 and A2. The final report is self contradictory in
many places and unable to fix the principal offender and abettor. Further,
all the three accused are projected as abettors.
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5.He further submitted that before the Trial Court, during the course
of arguments in the discharge petition CBI filed an additional counter in
which they admitted that the prosecution is not certain regarding the
principal offender and the abettor. The Trial Court ought to have accepted
the inability of CBI to fix the principal offender and abettors and invoking
Section 239 Cr.P.C. ought to have discharged A1 from this case since no
one can be a principal offender and abettor fro the same offences. The
Lower Court committed an error to present a solution of alternate charge
under Section 221 Cr.P.C. In this case, the Trial Court framed the charges
on 04.03.2022 against all the accused on the presupposition of alternate
charge, making A1 as a principal offender and A2 as an abettor in one
charge and on the second charge made A2 as a principal offender and A1 as
an abettor inspite of the fact that A1 has not possessed any property in his
name, thereby the Trial Court committed an error and allowing the trial to
proceed on the charges framed would cause grave prejudice to A1 since it
will go against the fundamental principle laid down in Sections 218 and 221
of Cr.P.C. Further, it would be impossible and difficult for A1 to defend in
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the trial if the charges are inalternate. He further submitted that holding of
property is not an offence and only in case of unable to give proper
explanation for the same would constitute the offence, in this case, A1 does
not hold any property in his name which is disproportionate to his own
source of income.
6.The learned senior counsel for A2 submitted that the order passed
by the Trial Court is erroneous both in law and on facts and liable to be set
aside. He would submit that A2 and A1 are husband and wife, both are
Government servants, both are having independent income and
consequently having right to possess independent properties. So the assets
of two independent public servants cannot be combined in a single charge
sheet. He further submitted that the disproportionate asset involved in this
case for both A1 and A2 are one and the same and both cannot be tried by a
single charge sheet in the same trial, more so, when each of the public
servants gave explanation and reason for holding the assets in their name.
The income of A2 as well as her husband A1 were underestimated as could
be found from the undisputed documents which are available with CBI.
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The CBI failed to consider these documents during preliminary enquiry and
registered the above case. In the final report, paragraph 36 is quite contrary
to paragraphs 37 and 39 which clearly prove that the intention of CBI is to
somehow file a case against all the accused without having any iota of
evidence. From the charge sheet it is clear that there is no material or
documents to satisfy the legal requirement of Section 107 IPC and Section
13(1)(e) of PC Act, 1988. It is admitted by the CBI in the additional
counter filed before the Trial Court that they are unable to fix the principal
offencer and the abettor. The Trial Court ought to have accepted the
inability of CBI to fix the principal offender and abettor ought to have
invoked Section 239 Cr.P.C. and discharge A2 from the case for the reason
that one cannot be a principal offender as well as abettor for the same
offence. The Lower Court committed an error by taking a recourse to
Section 221 Cr.P.C. to frame alternate charges. The Lower Count failed to
consider the importance of fixing principal offender in disproportionate of
assets case wherein a public servant possessing disproportionate assets has
to explain the resources which A2 have given and not considered by the
Investigating Officer.
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7.He further submitted that in this case, the Trial Court framed the
charges on 04.03.2022 against all the accused on the presupposition of
alternate charges making A1 as a principal offender and A2 as an abettor in
one charge and on the second charge made A2 as a principal offender and
A1 as an abettor inspite of the fact that A1 not possessed any property in his
name, thereby the Trial Court committed an error. In such position,
allowing the trial to proceed would cause grave prejudice to the accused and
go against the fundamental principle laid down under Sections 218 and 221
of Cr.P.C. Further, it would be impossible and difficult to A2 to defend
herself in the trial if the charges are inalternate. He further submitted that if
the trial is allowed to proceed it would be violative of Section 218 Cr.P.C.
wherein it is stated that every distinct offence shall be tried by separate
charge and such charge shall be tried separately. Further charging a person
for abetment under Section 109 IPC it is necessary to mention which of the
three provisions of Section 107 IPC is applicable. Learned senior counsel
further submits that expenditure and income of A1 and A2 are taken in
common, despite the explanation given by A1 and A2 the same not
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considered. He further submitted that A2 had given intimation and got
permission from the Department. Both the public servants cannot be
prosecuted as primary offenders. He further submitted that no notice was
given to A2 calling for any explanation.
8.In support of his contentions, the learned senior counsel for A2
relied upon the decision of the Apex Court in the case of Anant Prakash
Sinha Alias Anant Sinha vs. State of Haryana and another reported in
[2016] 6 SCC 105, and submitted that Cr.P.C. gives ample powers to the
Courts to alter or amend a charge provided that the accused has not to face a
charge for a new offence or is not prejudiced either by keeping him in the
dark about the charge or in not giving him full opportunity of meeting it and
putting forward any defence open to him on the charge finally preferred
against him. He also relied upon the decision in the case of Main Pal vs.
State of Haryana reported in [2010] 10 SCC 130 for the principle to
Sections 212, 215 and 464 of Cr.P.C. and the Apex Court held that the
object of framing a charge is to enable an accused to have a clear idea of
what he is being tried for and of the essential facts that he has to meet.
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Further, the accused is entitled to know with certainty and accuracy the
exact nature of the charge against him and unless he has such knowledge,
his defence will be prejudiced. Further, the Apex Court clearly held that in
judging a question of prejudice, as of guilt, the Courts must act with a broad
vision and look to the substance and not to the technicalities and their main
concern is to see whether the accused had a fair trial. In this case, there is a
material error in the charge as it violated the requirement of sub-section (1)
of Section 212 Cr.P.C.
9.The learned counsel for A3 submitted that A3 except for being
brother of A1 and brother-in-law of A2, he has nothing to do with their
properties/assets. The primary contention of CBI is that for purchase of
property at CIT Nagar and developing the same both A1 and A2 used the
name of A3 and projected the loans/payments advanced by A3 is that of A1
and A2, forgetting for a moment that A3 was running two firms in the name
of M/s.Efficient Management Consultants and M/s.EMC HR Solutions,
both firms had good clientele and good business, their accounts have been
properly submitted to the Income Tax Department which so far not raised
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any objections on the same. He further submitted that in the final report at
paragraph 38 it is projected that A3 was given an opportunity to offer his
explanation but no such opportunity was given to him. A3 is running a PF
Consultant Office in the name of M/s.Efficient Management Consultants
from the year 2005 onwards and the CBI during search had seized the
Income Tax returns of A3 for the assessment years 2009 to 2014 from EMC
Office and the same is mentioned in the Seizure Mahazar dated 18.01.2016
as Document No.89. This income tax returns if properly studied and
analyzed would show that A3 was into regular business and was filing
contemporary statement of accounts to the authorities. The Statement of
accounts of A3 was not considered by CBI and no reason was given for the
same. On the contrary, the Income Tax Officer has been listed as L.W.56
gives a statement as though A3 has not filed any income tax returns from
2007, forgetting for a moment that CBI seized income tax returns from 2009
to 2014 during the search. A3 is roped in on the charge of abetment under
Section 109 IPC, prior to it, it is the duty of Investigating Agency to show
under which of the provisions of Section 107 IPC the act of A3 would come
under. A3 could have been shown as a witness in this case and not as an
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accused. In this case, no preliminary enquiry conducted before registration
of FIR which is the dictum of the Apex Court in Lalita Kumari case [Lalita
Kumari vs. Government of Uttarpradesh reported in [2014] 2 SCC 1]. He
further submitted that the admitted position is that even prior to registration
of FIR, A3 filed his income tax returns to the Department and the same is
not disputed. In such circumstances, the income tax returns filed by A3
ought to have been taken in toto wherein the loans given to the other
accused who are none other than his brother and sister-in-law ought to have
been considered and no explanation in whatever manner was sought from
A3.
10.In support of his contention, the learned counsel for A3 relied
upon the decision of the Apex Court in the case of Nitya Dharmananda
Alias K.Lenin and another vs. Gopal Sheelum Reddy also known as
Nithya Bhaktananda and another reported in [2018] 2 SCC 93, wherein
the Apex Court observed that the Court is to be satisfied that the materials
available with the Investigator, not made part of the charge sheet, has
crucial bearing on the issue of framing of charge. But if the court is
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satisfied that there is material of sterling quality which has been withheld
by the Investigator/Prosecutor, the Court is not debarred from summoning
or relying upon the same even if such document is not a part of the charge
sheet. In this case, the income tax returns of A3 has already been seized and
forms part of the charge sheet as Document No.89 which the Trial Court
failed to consider. He also relied upon the decision of the Apex Court in the
case of Manjeet Singh Khera vs. State of Maharashtra reported in [2013]
9 SCC 276, wherein the Apex Court following V.K.Sasikala Case
[V.K.Sasikala vs. State reported in [2012] 9 SCC 771 : [2013] 1 SCC (Cri)
1010], observed that while submitting a report under Section 173 Cr.P.C., a
fair amount of application of mind on the part of the Investigating Agency
is inbuilt in the process by producing all the documents which have been
seized during investigation both in favour of the prosecution as well as the
accused. He also relied upon the decision of the Apex Court in the case of
State of Andhra Pradesh vs. J.Satyanarayana reported in JT 2000 [10] SC
430, wherein the Apex Court held that the income tax returns filed earlier to
registration of the case have to be considered and cannot be labelled as an
after thought when the same has been filed much earlier, prior to even
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registration of case.
11.Further, the learned counsel for A3 produced the income tax
returns of A3 in support of his contention that A3 was having a running
business having transactions and making profit and the income tax returns
have been filed for the assessment years 2009-2010, 2011-2012 and 2013-
2014. He further pointed out that advance for loan, a sum of Rs.36 lakhs
have been paid and shown in the assets column as early as 21.12.2012. He
further submit that the charges framed against the accused are not clear,
improper, causing grave prejudice and nobody can be a principal offender
and a abettor, thereby the impugned order dated 07.02.2022 is to be set
aside and acquit the accused from all charges.
12.The learned Special Public Prosecutor opposed the contention of
the petitioners and submitted that in this case the relationship and status of
the accused are not in dispute. A1 and A2 are husband and wife, both are
public servant employed in EPFO and AGs Office, A3 is the brother of A1
and brother-in-law of A2. The CBI registered a case in RC MA1 2016 A
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0048 on 27.12.2016 against the accused for the offence under Section 109
IPC and Section 13(2) r/w. 13(1)(e) of PC Act, 1988. Initially the check
period was fixed from 01.12.2011 to 09.12.2016, after investigation charge
sheet was filed against A1 to A3 for the offence under Section 109 IPC and
Section 13(2) r/w. 13(1)(e) of PC Act, 1988 before the learned Principal
Special Judge for CBI Cases, VIII Additional City Civil Court, Chennai and
the same was taken on file as C.C.No.10 of 2018. During investigation, it
was revealed that A1 and A2 being public servants, acquired
disproportionate assets to the tune of Rs.1,82,26,186.81/- during the period
from 23.07.2010 to 09.12.2016. In the charge sheet, the assets, income and
expenditure in Statements A, B, C and D clearly reveal the possession of
disproportionate assets in the name of A1 and A2. Major portion of assets
acquired during the check period is during July 2010 A1 purchased a plot
measuring an extent of 1302 sq.ft. along with a house measuring 300 sq.ft.
at Old No.71, New No.28, 1st Cross Street, CIT Nagar, Chennai in the name
of A2 for total consideration of Rs.93 lakhs, in this regard a sale agreement
dated 23.07.2010 was executed which is shown as Document No.79. Out of
Rs.93 lakhs a sum of Rs.57,25,000/- was paid to the vendors/sellers,
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namely, L.W.9/Kalaiselvan, L.W.10/Pachiammal, L.W.11/Poonurangam
and L.W.12/Veeran by way of cheques [Document Nos.122. 172, 173, 176,
179, 180, 187, 188, 189, 190, 200, 201, 296, 297, 298, 299, 324] and the
balance amount of Rs.37,75,000/- was paid in cash to L.W.9 to L.W.12.
The statement of witnesses, L.W.9, L.W.12, L.W.36, L.W.37 and L.W.60
confirms the same. Further, L.W.10, LW.11, L.W.12 and L.W.36 gave a
statement under Section 164(5) Cr.P.C. which is Document Nos.328 to 330
would prove that A1 and A2 paid a total amount of Rs.93 lakhs for the
above property and its mode of payments. In the charge sheet, the modes of
payment are reproduced which show that as per sale agreement dated
23.07.2010 [D-79] cash was paid to the sellers as advance, A1 issued a
cheque dated 31.08.2010 for a sum of Rs.50,000/- drawn on Canara Bank,
Royapettah Branch in the name of L.W.9/Kalaiselvan and A2 issued a
cheque dated 27.11.2010 for a sum of Rs.1,60,000/- drawn on South Indian
Bank, T.Nagar Branch in the name of L.W.9. Further, on the instructions of
A1, L.W.36/D.Ravichandran, friend of A1 issued cheques which are as
follows:
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Sl. Name of the Cheque Amount In favour of
No. Bank/branch A/c.No. No. and in Rs. Sellers
date S/Shri
1 Indian Overseas 17910100000 882883 & 70000 Kalaiselvan
2 Bank, 0109 22.10.2010
Triplicane 882881 & 200000 Kalaiselvan
3 Branch, 27.11.2010
4 Chennai
882885 & 200000 Ponnurangam
13.09.2011
882884 & 30000 Kalaiselvan
09.01.2011
5 Central Bank of 1037331035 364551 & 70000 Kalaiselvan
6 India, 22.12.2010
Triplicane 364553 & 45000 Kalaiselvan
Branch, 09.01.2011
Chennai
7 UCO Bank, 07830110009 998161 & 300000 Ponnurangam
Triplicane 147 07.09.2011
Total 915000
13.A3, younger brother of A1 made payment for total amount of
Rs.36,00,000/- to the sellers L.W.9 to L.W.12 by way of cheques [D-203,
D-232, D-296 to D-299, D-324] from the current acount of M/s.Efficient
Management Consultant, which is maintained with South Indian Bank,
T.Nagar Branch, Chennai which are as follows:
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Sl. Cheque Date Amount in In favour of S/Shri
No. Rs.
1 896945 28.04.2011 1000000 Smt.Pachaiammal
2 896946 06.05.2011 1000000 Kalaiselvan
3 81978 12.08.2011 500000 Veeran
4 385097 28.10.2011 300000 Veeran
5 385096 01.11.2011 300000 Ponnurangam
6 385086 19.11.2011 500000 Ponnurangam
Total 3600000
14.L.W.60/V.Velmurugan, the then employee of A3 issued a cheque
for Rs.5,00,000/- from his Savings Bank account maintained with South
Indian Bank, T.Nagar, Chennai in favour of L.W.12. L.W.37/Sudhir
Kumar, Proprietor of M/s.Swastik Shree, friend of A1 made payment of
Rs.5,00,000/- to L.W.12/Veeran by issuance of two cheques for
Rs.2,50,000/- each drawn on Bank of Baroda, Sowcarpet Branch, Chennai.
The said amount was subsequently repaid to L.W.37 by A1 and his
brother/A3. Hence, the total payment made to sellers by A1 to A3 are as
follows:
Name of the Sellers Amount in Rs.
Shri Kalaiselvan and Smt 2625000
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Name of the Sellers Amount in Rs.
Pachaiammal (LW-9 & LW10)
Shri B Veeran (LW-2) 1800000
Shri B Ponnurangam (LW-11) 1300000
Total 5725000
15.It further revealed during investigation that A1 and A2 paid the
remaining amount of Rs.35,75,000/- to the vendors, namely, L.A.9 to
L.W.12 in cash which was confirmed by them and the said property was
registered in the name of A2 vide Document No.2685/2011 dated
08.12.2011 at Sub-Registrar Office, T.Nagar, Chennai. It was also
confirmed that after purchasing the property A1 obtained plan approval for
the construction of residential building [Ground floor + first floor + terrace]
from Corporation of Chennai. Thereafter, A1 started to construct a
commercial cum residential building in the said land in the year 2013 and
completed the construction in the year 2015. Though A1 obtained
permission for construction of house building to Ground floor, first floor
and terrace, he constructed four floors in the property which stands in the
name of his wife/A2. During construction, A1 paid Rs.34,60,000/- through
A3 during the period May 2013 to May 2014 to the builder L.W.51/Venkat
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which is confirmed by document No.282. A1 and A2 also made payment of
Rs.35 lakhs to Rs.40 lakhs to L.W.51 towards labour charges and materials
and for the interior work A1 paid rS.44,16,000/- to L.W.52/Raffi who had
confirmed the same. L.W.53/Nathique Haque supplied UPVC Windows at
the cost of Rs.2,70,000/-. The evidence both oral and documentary confirm
that A1 and A2 spent a total amount of Rs.1.26 Crores approximately for the
construction of building at CIT Nagar. Th CPWD authorities arrived at the
construction value of the house at Rs.1,29,74,825/- vide report Document
No.94. During investigation, it was also found that A2 submitted the
intimation in the prescribed format dated 14.09.2011 for purpose of 1200
sq.ft. Of land at Plot No.123, Old No.71, New No.28, 1st Cross Street, CIT
Nagar, Chennai for the sale consideration of RS.30 lakhs including
registration charges from L.W.10 to L.W.12, A2 also intimated in the
prescribed format dated 07.05.2012 about the proposal of construction of
house at a cost of Rs.50 lkahs by D-244. The intimation with regard to the
purchase of land and construction of house submitted by A2 to AGs Office
authorities are with false particulars and suppression of facts. The actual
value was intimated to the Department. It is also seen that A1 and A2
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availed housing loan of Rs.17.70 lakhs from Karu Vysya Bank,
Nungambakkam Branch, Chennai and the amount was transferred to HSBC
Bank, Adyar Branch to close the existing housing loan which was availed
for the house property at Nos.46 and 47, Dr.Giriappa Road, Flat 2A,
Srinivaam Apartments, T.Nagar, Chennai. Further term loan of Rs.15 lakhs
availed from Karur Vysya Bank, Nungambakkam Branch on 19.05.2015 to
purchase an elevator. Out of Rs.15 lakhs, a sum of Rs.13,53,490.30 was
paid to M/s.Kone Elevator on 03.07.2015. A1 and A2 being public servants
not intimated about the said two loans, namely, housing loan of Rs.17.70
lakhs and term loan of Rs.15 lakhs availed from Karur Vysya Bank,
Nungambakkam Branch, Chennai.
16.A3, younger brother of A1 is running a partnership firm in the
name of M/s.Efficient Management Consultant and engaged in the business
of preparation of payroll, consultant for remittance of EPF and ESIC
contribution and other services whereas A1 was working a Senior Social
Security Assistant and Section Supervisor in Employees Provident Fund
Organization, Regional Office, Chennai and was also looking after the day-
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to-day affairs of M/s.Efficient Management Consultant including its bank
transactions. A3 made payment of Rs.36,00,000/- to the sellers, namely,
L.W.9 to L.,W.12 and also paid Rs.34,60,000/- to the builder
L.W.51/P.K.Venkat by issuing the cheque of M/s.Efficient Management
Consultant maintained with South Indian Bank, T.Nagar Branch, Chennai.
A3 further made a payment of Rs.7.2 lakhs to Shriram Chits in favour of A2
and transferred a sum of Rs.2,35,000/- from his bank account to the SB
account of A2 which is maintained at HSBC Bank, Adyar, Chennai. Apart
from issuance of cheques by A3, an equivalent amount of cash was
deposited in the bank of M/s.Efficient Management Consultant to clear the
cheques which is nothing but the ill gotten money earned by A1 routed
through the bank account of M/s.Efficient Management Consutant of A3.
Investigation further reveal that A3 had no sufficient business income and
there is no sufficient bank balance of M/s.Efficient Management Consultant
to clear the cheques which were issued in the name of sellers, builder,
Shriram Chits and to others. The employees of M/s.Efficient Management
Consultant, namely, L.W.63/Saranya, L.W.64/Udhayakumar confirm that a
total amount of Rs.77,53,200/- were deposited as cash in the amount of
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M/s.Efficient Management Consultant. The corresponding vouchers,
cheques have ben collected and the bank officials have also confirmed the
same. He further submitted that the assets at the beginning of the check
period, properties acquired during the check period, income, expenditure,
likely savings and the disproportionate assets have been tabulated by way of
Statements A, B, C and D which is available in the charge sheet with all
particulars and details.
17.During investigation, A1 to A3 were given opportunity to give
explanation for the disproportionate asset but no satisfactory explanation
could be given by the accused. The accused have not denied the items
mentioned in the statements. A1 to A3 independently filed three discharge
petitions, during the pendency of the same A3 filed Crl.M.P.No.321 of 2021
under Section 91 Cr.P.C. to summon income tax returns while considering
the discharge petition filed by him under Section 239 Cr.P.C. The same was
dismissed by the trial Court on 19.09.2021, aggrieved against the same, A3
filed Crl.O.P.No.20111 of 2021 and this Court by order dated 04.02.2022
negatived A3's contention confirming the dismissal of petition filed under
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Section 91 Cr.P.C. seeking income tax returns by observing that mere fact
that the petitioner/A3 was assessed to income tax and he paid income tax for
the income shown in the ITRs cannot be relied upon to discharge him from
the charges and it cannot be held that the income shown in the ITRs were
derived from the business and belonged to the petitioner to discharge him
from the charges. This being so, the petitioner/A3 now making submissions
that his income tax returns have not been produced and considered is not
proper and sustainable.
18.Learned Prosecutor further submitted that A1 and A2 are jointly
residing in single accommodation, income, asset and expenditure of A1 and
A2 were taken for calculation. The role of A1 to A3 in respect of purchase
of land for Rs.93 lakhs, construction of house building for Rs.1,29,74,825/-
have been elaborately analysed and considered with relevant statements and
documents. During the course of investigation all the legal/known source of
income of A1 and A2 such as salary, GPF withdrawals, bank loans, loan
availed from societies, etc. were considered and have been listed in the
charge sheet as statements. After thorough investigation, it was ascertained
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that A1 and A2 had amassed disproportionate assets in the names to an
extent of Rs.1,82,26,186.81 which is around 116.67% disproportionate to
their known source of income. On completion of investigation, charge sheet
filed listing 92 witnesses with their statements and annexing 333
documents. The Lower Court considered the contentions putforth by the
accused and by a detailed order dismissed the same. The points raised by
the petitioners are factual in nature and disputed, which are to be decided
during trial and not in a discharge petition. The prosecution has collected
materials and produced all the materials to substantiate the disproportionate
asset held by the accused and it is for the accused now to give plausible
explanation to the concerned Court for acquiring these properties and both
A1 and A2 have not denied any of the properties which is listed in the
charge sheet. The accused/A1 to A3 in a well planned and camouflaged
manner have diverted the ill gotten money through the business accounts of
M/s.Efficient Management Consultant and projected the same as genuine
transactions. The main plan of attack of the accused is that both A1 and A2
being public servants cannot be charged under Section 13(2) r/w. 13(1)(e)
of PC Act, 1988 for the same disproportionate asset listed in the tabulations.
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He further submitted that in this case, all the accused in a well orchestrated
manner committed the offence right from the initial time when they propose
to purchase the property. The vendors/sellers have clearly stated the initial
amount paid by A1, thereafter at the request of A1 the property was
registered in the name of A2 and some money was paid through A2 and in
the meanwhile, A3 paid a portion of the sale consideration to the vendors
which is confirmed by L.W.9 to L.W.12. Apart from it, A1 made an
application with the municipal authorities for construction of building
further in violation of the approved plan constructed four floors for
residential cum commercial purpose. A3 was running his business in the
said building. In the meanwhile, A2 shown a lesser amount as sale
consideration for purchase of plot as well as for construction of house
building and sought approval with the authorities by suppression of facts
and submission of false documents. When approval was obtained by fraud
and suppression, the same is non-est in law.
19.He further submitted that the Trial Court considering all these
aspects passed a detailed order. The petitioners by filing one petition after
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another from the year 2018 have successfully stalled the trial of the case.
Hence, he prayed for dismissal of the revision petitions and with a direction
to complete the trial expeditiously. Learned Prosecutor filed a typed set
with statement of relevant witnesses and documents. He further submitted
that the citations referred to by the petitioners are not applicable to the facts
and circumstances of the above case. He would further submit that the
principle that has to be kept in mind is that charge so framed by the
Magistrate is in accordance with the materials produced before him or if
subsequent evidence comes on record. It is not to be understood that unless
evidence has been let in charges already framed cannot be altered, for that is
not the purport of Section 216 Cr.P.C. Further, it is obligatory on the part of
the Courts to see that no prejudice is caused to the accused and he is
allowed to have a fair trial.
20.This Court considered the rival submissions and perused the
materials available on record.
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21.In this case, both A1 and A2 are public servants. A1 employed in
EPFO, A2 employed in AGs Office and A3, brother of A1, was doing
business in the name of M/s.Efficient Management Consultant and
M/s.EMC HR Solutions.
22.The case in RC MA1 2016 A 0048 was registered against A1 and
A2 for offence under Section 109 IPC and Sections 13(2) read with 13(1)(e)
of PC Act, 1988 by the CBI on 27.12.2016 and the check period was taken
from 01.12.2011 to 09.12.2016. During investigation finding that the
acquisition of properties was during the month of July 2010, the check
period expanded to 23.07.2010 to 09.12.2016. On completion of
investigation, charge sheet filed listing out the properties at the beginning of
the check period as on 23.07.2010 as Statement-A; Assets at the end of
check period as on 09.12.2016 as Statement-B; Income during the check
period as Statement-C; Expenditure during the check period as Statement-D.
Finally, after calculating the income, expenditure and assets, the accused
(A1 to A2) were found to hold disproportionate assets to the tune of
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Rs.1,82,26,186.81/-, which is around 116.67% disproportionate to their
known source of income. The above said Statements are given in separate
tabulation, listing out particulars of properties and its values etc. The
accused not disputed the properties, but raised objections as regards the
valuation of the properties by over estimation, likewise for denial of rightful
income derived by them. In Statement-B, i.e., Assets at the end of the check
period, three items are shown. Item No.1 is a flat at 2A, Second Floor,
Srinivasa Apartment, Giriyappa Road, T-Nagar, Chennai. This property is
shown in the Statement-A. As regards Item No.2, a plot to the extent of
1302 sq.ft at Old No.71, New No.28, First Cross Street, CIT Nagar
purchased on 08.12.2011 in the name of A2-Vijayalakshmi, is to the tune of
Rs.93 lakhs and construction of commercial-cum-residential building in the
said plot is to the value of Rs.1,29,74,825/-. These two Items are projected
as disproportionate assets.
23.The primary contention of A1 and A2 is that both are public
servants, hence, they have every right to purchase properties in their
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individual name. Further contention is that no property stands in the name
of A1, which fact is known to the respondent, but invoking Section 109
IPC, A1 is made as an accused. The contention of A2 is that the serial
Nos.2 and 3 listed in Statement-B are the properties, for which, A2 already
informed her superiors and got approval for the same. As per Section
13(1)(e) of the PC Act, Explanation “known source of income” means
income received by any lawful source and such receipt has been intimated
in accordance with the provisions of any law, rules or orders for the time
being applicable to a public servant. In this case, as per the Central
Government Conduct Rules, the purchase and development of the property
intimated to the superiors. In view of the same, A2 cannot be proceeded
with.
24.Further submission is that the charge Nos.1 and 2 are primary
charges against A1 and A2 respectively for offence under Sections 13(2)
r/w 13(1)(e) of PC Act. In both charges, the period of acquisition is from
23.07.2010 to 09.12.2016 and the value arrived is Rs.1,82,26,186.81/- for
the same property. The charge No.3 is the charge for abetment against each
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other. Charge Nos. 1 and 2 cannot be framed against both A1 and A2 as
principal offenders. The Trial Court resorting to Section 221 Cr.P.C is not
proper. Further, in the impugned order, it is recorded that the Investigating
Officer admits his difficulty in fixing the principal offender, giving approval
to the same, is not proper and appropriate on the facts and circumstances of
the case. Section 13 of the PC Act is that “A public servant is said to
commit the offence of criminal misconduct,— if he or any person on his
behalf, is in possession or has, at any time during the period of his office,
been in possession for which the public servant cannot satisfactorily
account, of pecuniary resources or property disproportionate to his known
sources of income. Explanation.—For the purposes of this section, “known
sources of income” means income received from any lawful source and
such receipt has been intimated in accordance with the provisions of any
law, rules or orders for the time being applicable to a public servant”. In
this case, as stated above, for the property situated at Old No.71, New
No.28, 1st Cross Street, CIT Nagar, Chennai, advance amount was paid by
A1 to the vendors and thereafter further amount was paid by A1 to A3,
which is not denied by the vendors. In this case, 164(5) Cr.P.C statement of
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the vendors recorded. The bank entries along with debit and credit
vouchers, statement of accounts collected and filed along with the charge
sheet. Though the advance was paid by A1, on his request, the property was
registered in the name of A2 by sale deed vide document No.2685/2011,
dated 08.12.2011 at Sub-Registrar Office, T.Nagar, Chennai. Though the
property registered in A2's name, A1 makes application to the municipal
authorities for plan approval and construction of residential building for
ground floor, first floor and terrace. Simultaneously, A2 informs her
superior about purchase of CIT Nagar property and the cost of building. It
was later found that the building has been constructed in violation of the
building permission and presently four floors of commercial-cum-
residential building constructed. The valuation of the property by the
Senior Executive Engineer, CPWD is fixed at Rs.1,29,74,825/-. On the
contrary, the information/permission sought by A2 with AGs Office is of
much lesser value. A3, brother of A1 paid around Rs.36 lakhs to the
vendors through bank and cheques which is reflected in the Income Tax
Returns. Prior to issuance of the cheques, corresponding cash deposits
made, the statement of LW63 & LW64, Employees of A3, confirm in their
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statements. The corresponding bank vouchers and other documents
collected and seized.
25.The contention of A3 is that this Rs.36 lakhs shown as advance for
land in the Income Tax Returns for the assessment year 2012-2013 and the
same filed with the Income Tax Authorities on 21.12.2012 much before the
registration of the above case, is with credence. This Income Tax Returns
seized during the search of his office on 18.01.2016 in connection with
RC2(A)/2018 by CBI/ACB, Chennai. Though the documents have been
seized by CBI in a different crime number, the Investigating Agency is one
and the same. The CBI is aware of the Income Tax declaration and the
same ought to have been considered and accepted. The Hon'ble Apex Court
in the case of “State of Tamil Nadu by Inspector of Police, Vigilance and
Anti-Corruption vs. N.Suresh Rajan report in (2014) 11 SCC 709” have
held that mere filing of Income Tax Returns cannot be considered as
defence proved by the accused. This view is consistently followed, in the
absence of corresponding evidence, the Income Tax Returns cannot be
accepted on its face value.
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26.The contention of A1 and A2 as regards the house property at CIT
Nagar, this Court finds that in view of the statements of the vendors, bank
vouchers, cheques, statements, statement of builder, material suppliers and
others, the contention and defence of the accused ought to be decided only
during trial and the same cannot be considered now. The only contention is
that there cannot be alternate offenders. As per Section 221 of Cr.P.C, there
can only be alternate charge and hence, charging A1 and A2 for the same
property and for the same period and same value, is not proper. The
purpose of framing of charge is for the accused to know for what reason he
is prosecuted and details to be given, namely, contents of the charge,
particulars as to time, place and reason, manner of committing the offence,
and under which offence is punishable. The primary contention that the
charge Nos.1 and 2 cannot be framed against both A1 and A2 and both
cannot be required to answer for the same disproportionate assets, will not
hold good on the facts and circumstances of the case. The manner in which
the CIT Nagar property has been acquired, developed and payments made to
the vendors, builders and others, have been attributed to all the accused A1
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to A3, who have made payments through banks by joint account, single
account and by cash over a period of time and tentatively camouflaging the
payments. A1 to A3 have been seen as one by the vendors, builders and
material suppliers. The apprehension of the accused is misconceived on the
charges framed. There is no ambiguity or any prejudice would be caused to
the accused which is the prime concern which the Court is required to look
into.
27.The Hon'ble Apex Court in the case of “P.Nallammal and
another Versus State represented by Inspector of Police reported in
(1999) 6 Supreme Court Cases 559” considered the trial of non public
servant for abetment of offence under Section 13(1)(e) of PC Act along with
public servant. In paragraph No.20, it had held as follows:-
“20. The above contention perhaps could have been
advanced before the enactment of the PC Act, 1988 because
Section 5(1)(e) of the old PC Act did not contain an
“Explanation” as Section 13(1)(e) now contains. As per the
Explanation the “known sources of income” of the public
servant, for the purpose of satisfying the court, should be
“any lawful source”. Besides being the lawful source the
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Explanation further enjoins that receipt of such income
should have been intimated by the public servant in
accordance with the provisions of any law applicable to such
public servant at the relevant time. So a public servant
cannot now escape from the tentacles of Section 13(1)(e) of
the PC Act by showing other legally forbidden sources, albeit
such sources are outside the purview of clauses (a) to (d) of
the sub-section.”
Finally, it had observed as follows:-
“25. Such illustrations are apt examples of how the
offence under Section 13(1)(e) of the PC Act can be abetted
by non-public servants. The only mode of prosecuting such
offender is through the trial envisaged in the PC Act.”
28.Thus, with the aid of Section 109 IPC, even a non-public servant
can be prosecuted along with the public servant for offence under Section
13(e) of the PC Act. In the case of “DSP, Chennai Versus K.Inbasagaran
reported in (2006) 1 Supreme Court Cases 420”, the public servant and his
wife therein was holding joint possession of certain properties, further the
wife of the public servant was not prosecuted in that case and the Hon'ble
Apex Court held that the wife has fully owned the entire money and the
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other wealth. Further, it was very difficult to segregate how much of wealth
belong to the husband and how much belong to the wife. In the absence of
wife not being an accused and not prosecuted, the Apex Court held that it
would not be proper to hold the husband's guilty. In P.Nallammal case, a
private individual can be prosecuted along with the public servant, such
being the position, there is no impediment to proceed against both A1 and
A2 who happened to be public servants.
29.The requirement is that the accused who are facing trial, the
charges against them must be clear giving all particulars. Alternate charges
can be framed against the accused person if the Court thinks fit on the facts
and circumstances of the case. The only condition is that no prejudice is
caused to the accused in view of any ambiguity. The test to be applied is
that there should not be any actual or possible failure of justice. A1 and A2
being a husband and wife residing in same residence, purchased and
developed the property and made payments, the payments camouflaged and
rooted through various means by each of the accused. Whether it was by
design or otherwise it is a matter for trial. The principle that has to be kept
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in mind is that the charges so framed is in accordance with the materials
produced and the accused has understood the charges. In this case, the
accused A1 and A2 are fully aware what is the case against them, hence, it
is for them to meet out the charge in the trial. Further, it is obligatory on the
part of the Trial Court to see that no prejudice is caused to the accused and
they are allowed to have a fair trial. In this case, from the above facts, it is
seen that A1 to A3 acted in unison.
30.The Apex Court in the case of judgment of “State Through
Deputy Superintendent of Police Versus R.Soundirarasu etc., reported in
2022 SCC OnLine SC 1150” referring to various citations pertaining to
discharge of the accused in disproportionate assets, held in paragraph No.83
as follows:-
“83. Section 13(1)(e) of the Act 1988 makes a departure
from the principle of criminal jurisprudence that the burden
will always lie on the prosecution to prove the ingredients of
the offences charged and never shifts on the accused to
disprove the charge framed against him. The legal effect of
Section 13(1)(e) is that it is for the prosecution to establish
that the accused was in possession of properties
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disproportionate to his known sources of income but the term
“known sources of income” would mean the sources known to
the prosecution and not the sources known to the accused and
within the knowledge of the accused. It is for the accused to
account satisfactorily for the money/assets in his hands. The
onus in this regard is on the accused to give satisfactory
explanation. The accused cannot make an attempt to
discharge this onus upon him at the stage of Section 239 of the
CrPC. At the stage of Section 239 of the CrPC, the Court has
to only look into the prima facie case and decide whether the
case put up by the prosecution is groundless.”
31.The Constitutional Bench of the Hon'ble Apex Court in the case of
“K.Satwant Singh Versus State of Punjab reported in AIR 1960 SC 266”,
in paragraph Nos.19 to 23 had dealt in detail with regard to Charge, Form of
Charges and Joinder of Charges. With regard to old Code, there is no much
difference in the new Code, the pith and substance are same. The paragraph
Nos.19 to 23 in K.Satwant Singh case is extracted as follows:-
“19. The other line of argument in support of the
objection that the appellant and Henderson could not be tried
together was based on the provisions of Sections 233 and 239
of the Code. It was pointed out that under the provisions of
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Section 233 of the Code for every distinct offence of which any
person is accused there shall be a separate charge and every
such charge shall be tried separately except in the cases
mentioned in Sections 234, 235, 236 and 239. Unless,
therefore, the joinder of trial of the appellant and Henderson
was permitted under Section 239 of the Code they could not be
tried together. It was urged that in construing Section 239 of
the Code it was not permissible to take into consideration the
provisions of Section 234. The only provision by which a
person accused of an offence and a person accused of abetment
of that offence can be tried together in a single trial is under
Section 239(b) which permits persons accused of an offence
and persons accused of abetment to be charged and tried
together. Under the terms of these provisions any number of
persons accused of commiting a single offence could be tried
together with any number of persons who had abetted that
offence. But clause (b) did not permit the trial of persons
accused of several offences and persons accused of abetment of
those offences in one trial and to try a person accused of three
offences along with a person accused of abetment of those
offences would be contrary to the provisions of clause (b). If
the provisions of Section 239(b) and Section 234 were
combined the result would be to create another exception to be
added to the exceptions stated in Section 233 of the Code. No
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Court had any authority to create a new exception to Section
233. Section 239 being an exception to Section 233 its
provisions had to be construed strictly. The plain words of
Section 239(b) make it quite clear that persons who had
committed a single offence and those who abetted it only could
be tried together. Since the appellant is said to have committed
three offences of cheating and Henderson three offences of
abetment thereof, the provisions of Section 239(b) did not
apply and their trial together was vitiated. It was further
pointed out that if there had been misjoinder of trial in the
present case it could not reasonably be said that the appellant
had not been prejudiced. If the appellant had been tried apart
from Henderson. Henderson's confession and all the evidence
against him would have been excluded at the trial of the
appellant. As the result of Henderson and the appellant being
tried together all the evidence against Henderson and his
confession must have necessarily adversely affected the case of
the appellant.
20. On the other hand, the Solicitor-General submitted
that the provisions of the Code of Criminal Procedure must be
construed as they stand and reference to decided cases may be
made to assist the court in the matter of construction if
necessary. The Code itself nowhere stated that Sections 234
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and 239 of the Code were mutually exclusive. The entire
scheme of joinder of charges and joinder of persons in a single
trial has been set out in the Code. Although Section 233 of the
Code is clear enough, it has expressly expected from the
application of its provisions Sections 234, 235, 236 and 239.
Sections 234, 235, 236 and 239 are permissive sections. They
are not compelling sections. That is to say, although these
sections permit joinder of charges and joinder of persons a
Court may well consider it desirable in the interest of justice
and having regard to the circumstances of a particular case
that the charges framed should be split up and separate trials
should take place in respect of them and the accused be tried
separately. It was to avoid multiplicity of trials, harassment to
the accused and waste of time that the permissive Sections 234,
235, 236 and 239 enable a court, within their terms, to join
charges and persons in a single trial. Section 239 permitted
joinder of charges and persons in a single trial in cases
covered by clauses (a) to (g). These clauses permitted the
joinder of persons as accused in one trial and they
contemplated the various circumstances in which such persons
could be tried together. Joinder of several persons in one trial
necessarily involves the framing of more than one charge. If
the joinder of charges was within the terms of the section, then
the provisions of Section 233 had no application. Although in
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clause (b) of the section the words used are “persons accused
of an offence and persons accused of abetment, or of an
attempt to commit such offence”, a reasonable construction of
these words could not lead to the conclusion that the words
“an offence” meant a single offence because under Section 13
of the General Clauses Act (Central Act 10 of 1897) words in
the singular shall include the plural and vice versa. Under
clause (b), therefore, persons accused of several offences and
persons accused of abetment thereof could be tried together in
a single trial. The concluding words of Section 239 “and the
provisions contained in the former part of this Chapter shall,
so far as it may be, apply to all such charges” permitted a
court to apply that part of Chapter 19 which preceded Section
239. Section 234 was one such provision and a court could
resort to its provisions so far as they were applicable.
21. It was further pointed out by the Solicitor-General
that although the appellant was asked to specify the points of
law upon which these appeals would be urged, he did not state
that, in fact, he had been prejudiced by a joint trial of himself
and Henderson. He also pointed out that as the result of the
amendment of the Code of Criminal Procedure misjoinder of
charges did not vitiate the trial unless the misjoinder had, in
fact, occasioned failure of justice.
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22. We now proceed to consider some of the provisions
of Chapter 19 of the Code which deal with the form of charges
and the joinder of charges as well as joinder of persons. So far
as the form of the charge is concerned, the provisions of
Sections 221 to 232 of the Code would apply in any event
where a single accused was being tried on a single or several
charges or where several accused were tried for various
offences at one trial within the terms of Section 239 of the
Code. So far as joinder of charges is concerned, Section 233
clearly required that for every distinct offence of which any
person was accused there must be a separate charge and every
such charge must be tried separately. The framers of the Code,
however, realised that it would be impracticable to have for all
circumstances such a rigid rule. The section, accordingly,
excepted from its provisions cases which were covered by
Sections 234, 235, 236 and 239. Section 234 accordingly
permitted a single accused to be tried at one trial for more
offences than one of the same kind committed within the space
of 12 months provided they did not exceed three in number.
Section 235 went a step further. It permitted an accused person
to be tried for more offences than one committed by him and
the framing of a charge with respect to every such offence,
provided that the series of acts were so connected together as
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to from the same transaction. It also permitted that if the acts
alleged constitute an offence falling within two or more
separate definitions of any law in force for the time being by
which offences are defined or punished, the person accused of
them may be charged with, and tried at one trial for, each of
such offences. It also provided that if several acts of which one
or more than one would by or themselves constitute an offence,
constitute when combined a different offence, the person
accused of them may be charged with, and tried at one trial for
the offence constituted by such acts when combined, and for
any offence constituted by any one, or more of such acts.
Section 236 permitted the framing of alternative charges where
a single act or series of acts is of such a nature that it is
doubtful which of several offences the facts which can be
proved will constitute, the accused may be charged with having
committed all or any of such offences and any number of such
charges may be tried at once.
23. By Section 239 joinder of persons in a single trial is
permitted in the circumstances mentioned in clauses (a) to (g).
At the trial of such persons charges would have to be framed.
Indeed, the section commences with the following words:
“The following persons may be charged and
tried together….”
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Leaving clause (b) out for the moment the other
clauses of the section clearly contemplate the
framing of more than one charge against accused
persons when tried together. Under clause (a)
persons accused of the same offence committed in
the course of the same transaction can be tried
together. Under clause (c) persons accused of
more than one offence of the same kind within the
meaning of Section 234 committed by them jointly
within the period of 12 months can also be tried
together. Under clause (d) persons accused of
different offences committed in the course of the
same transaction can be tried together. Similar is
the position in cases mentioned in clauses (e), (f)
and (g). It is clear, therefore, that the general rule
that for every distinct offence of which any person
is accused there shall be a separate charge, and
every such charge shall be tried separately has no
application to these clauses. Indeed Section 233
contemplated that and expressly excluded the
application of its provisions to Section 239. The
entire tenor of the provisions of Section 239
indicates that several persons could be tried
together for several offences committed in the
circumstances mentioned therein. There is no
apparent reason why clause (b) should be
construed in the way suggested by Mr Harnam
Singh, according to whom, in one trial any number
of persons could be tried for a single offence along
with any number of persons accused of abetment
of that offence. The argument was based on the
words “an offence” in that clause and the
suggestion was that these words meant a single
offence. Having regard to the providers of Section
13 of the General Clauses Act, the singular
includes the plural and it would not be straining
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the language of the clause if the same was
construed also to mean that persons accused of
several offences and persons accused of abetment
thereof could be tried together at one trial. So
construed framing of three charges under Section
420, Indian Penal Code, against Satwant Singh
and three charges of abetment against Henderson
in the same trial did not infringe the provisions of
clause (b). Furthermore, the concluding words of
the section make it clear that the provisions
contained in the former part of Chapter 19 i.e.
previous to Section 239 as a far as may be shall
apply to all charges framed at the trial. It was
suggested that the words “the former part of this
Chapter” referred to Sections 221 to 232 as
Chapter 19 is in two parts, the first part being the
form of charges and the second part joinder of
charges. Although such headings do appeal in the
Chapter, it is to be noticed that Chapter 19 does
not divide itself into several parts as is to be found
in many of the Chapters of the Code, e.g., in
Chapter XXIII the parts are headed A to L. It is
further to be noticed that words similar to the
concluding words of Section 239 do not appear in
Section 235 of the Code. The reason for these
words appearing in Section 239 of the Code
appears to be that this section permits persons to
be charged and tried together. The Code obviously
contemplated that when charges were being
framed against each of the several accused in the
cases contemplated in Section 239, not only the
provisions concerning the form of charges but also
the provisions concerning the joinder of charges,
as far as may be, should apply. In these appeals
the appellant was charged in one trial for three
offences of cheating and Henderson for abetment
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of the same. If the appellant had been tried alone
he could have been tried for three charges of
cheating committed within 12 months and
Henderson, in a separate trial, could have been
tried for three offences of abetment of the same
offences committed within 12 months. There is no
good reason for thinking that when clause (b) of
Section 239 permitted the joinder of the appellant
and Henderson in a single trial for the commission
of the offence of cheating and abetment thereof,
the same was confined to one offence of cheating
and one offence of abetment. In our opinion, the
trial of the appellant and Henderson together on
the charges as framed did not vitiate the trial.”
32.The Hon'ble Apex Court in plethora of judgments has pointed that
at the stage of framing of charge, the Court should not enter upon the
process of evaluating the evidence by deciding its worth or credibility. The
limited exercise during that stage is to find out whether the materials offered
by the prosecution to be adduced as evidence are sufficient for the court to
proceed further. The framing of charge cannot be interfered merely on
hypothesis imagination and far-fetched reasons. In this case, no
fundamental defects is found on the charges framed by the Trial Court. The
object of charge is to inform the accused person on the acquisition which he
has to meet.
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33.In this case, the prosecution has produced materials to show
disproportionate assets in the name of the accused. The possession of
properties are not denied, the mode of acquisition is disputed. It is for the
accused to now satisfy the trial Court by giving plausible explanation either
by way of cross examination or by examining themselves or producing any
defence witnesses and materials to show that there is no disproportionate
assets. This can be decided only in trial.
34.In view of the categorical finding of the Hon'ble Apex Court in
K.Satwant Singh case, this Court does not find any illegality or infirmity in
the order passed by the Trial Court in Crl.M.P.No.2564 of 2020,
Cr.M.P.No.6927 of 2019 and Cr.M.P.No.7326 of 2018, dated 07.02.2022
and the same are hereby confirmed. Accordingly, all these Criminal
Revision Cases stand dismissed.
35.It is made clear that the entire scrutiny is only for the purpose of
framing of charge and nothing else. It is for the trial Court to proceed with
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the trial as per the evidence brought on record and shall not influence by
any observation made herein and the same have to be restricted for the
purpose of disposing the above case. Consequently, the connected
Miscellaneous Petitions are closed.
24.05.2023
Speaking Order/Non Speaking Order
Index : Yes/No
Internet : Yes
cse/vv2
To
1.The Inspector of Police,
CBI/ACB,
Coimbatore.
2.The Special Judge for CBI Cases,
VIII Additional City Civil Court,
Chennai.
3.The Public Prosecutor,
High Court, Madras.
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Crl.R.C.Nos.316, 384 & 451 of 2022
M.NIRMAL KUMAR, J.
cse
Pre-delivery orders made in
Crl.R.C.Nos.316, 384 & 451 of 2022
24.05.2023
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