Dismissed

Smt M R Vimala W/O Sri Jayaram v. the State by Sheshadripuram Police

Karnataka HC11 Dec 2020CRL.RP/535/2011

Case brief

AI extract

What is this about?

Three criminal revision petitions challenging orders rejecting a discharge application in cases involving alleged forgery and misappropriation by a government employee. The High Court distinguished prior precedents, noting that disciplinary proceedings were not closed as the authority continued the petitioner's suspension and ordered a fresh audit, thus justifying the trial court's decision to pro

What did the court decide?

The three criminal revision petitions were dismissed as the trial court was justified in rejecting the applications for discharge.

Smt M R Vimala W/O Sri Jayaram Vs the… — Pension and Retirement Benefits | Karnataka HC (2020)

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Crl.R.P.No.535/2011 C/W Crl.R.P.Nos.536/2011, 537/2011

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF DECEMBER 2020

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BEFORE

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THE HON’BLE MRS. JUSTICE K.S.MUDAGAL

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CRIMINAL REVISION PETITION No.535/2011 C/w CRIMINAL REVISION PETITION No.536/2011, CRIMINAL REVISION PETITION No.537/2011

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BETWEEN :

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SMT.M.R.VIMALA W/O SRI.JAYARAM AGED ABOUT 43 YEARS R/AT 870/1, 1^ST ‘B’ CROSS VIDYANAGAR, BAGALAGUNTE BANGALORE – 560 073 … PETITIONER (COMMON)

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(BY SRI.P.N.NANJA REDDY, ADVOCATE)

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AND :

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1. THE STATE BY SHESHADRIPURAM POLICE STATION BANGALORE – 560 020

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1. KARNATAKA STATE SOCIAL WELFARE BOARD REPRESENTED BY ITS CHAIR PERSON NO.55, ‘ABHAYA’ 4^TH FLOOR KSCB BUILDING, RISILDAR STREET, SHESHADRIPURAM BANGALORE – 560 020 … RESPONDENTS (COMMON)

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(BY SRI.H.R.SHOWRI, HCGP FOR R1; SRI.K.V.NARASIMHAN, ADVOCATE FOR R2)

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THESE CRIMINAL REVISION PETITIONS ARE FILED UNDER SECTION 397 READ WITH 401 OF CRL.P.C. PRAYING

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Crl.R.P.No.535/2011 C/W Crl.R.P.Nos.536/2011, 537/2011

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TO SET ASIDE THE ORDER DATED 17.09.2010 IN C.C.NOS.21373/2007, 21371/2007 AND 21372/2007 ON THE FILE OF THE IV ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, BANGALORE.

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THESE CRIMINAL REVISION PETITIONS COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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Though these three revision petitions arise out of three different orders passed against the petitioner in three different cases, since the questions of law and facts involved and parties to all these cases are common, they are taken up together for disposal by this common order.

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Petitioner was working as Second Division Assistant in Karnataka State Social Welfare Department i.e., respondent No.2. Respondent No.2 filed complaint before the Circle Inspector of Police Sheshadripuram Police Station on 12.09.2005 as per Annexure-A alleging that the petitioner has misappropriated a sum of Rs.8,00,000/- forging the numerical figures in several cheques of the Board after the authorities signing the same and thereby committed the offences of forgery, misappropriation etc.

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Crl.R.P.No.535/2011 C/W Crl.R.P.Nos.536/2011, 537/2011

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It was further alleged that on internal enquiry the petitioner under the letters dated 16.07.2005, 20.07.2005 confessed the commission of the offence and issued cheque bearing No.772261 dated 01.08.2005 for a sum of Rs.3,15,000/- drawn on Indian Overseas Bank, Bengaluru which came to be dishonoured for want of sufficient funds.

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On such complaint respondent No.1 Sheshadripuram Police registered FIR in Crime No.197/2005 for the offences punishable under Sections 468, 471, 420 and 408 of IPC. Since the offence alleged covered the period 2003-04, 2004-05 and 200506, having regard to Section 219 of Cr.P.C. the Investigating Officer filed three separate charge sheets.

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Though the case arise out of single FIR, regarding the offence covering the period 2003-04, C.C.No.21371/2007, for 2004-05 C.C.No.21372/2007 and for 2005-06 C.C.No.21373/2007 were registered before the IV Additional Chief Metropolitan Magistrate,

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Crl.R.P.No.535/2011 C/W Crl.R.P.Nos.536/2011, 537/2011

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Bengaluru. The learned Magistrate on taking cognizance summoned the petitioner in all those cases.

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When the matters were set down for hearing before charge, the petitioner filed application under Section 239 Cr.P.C. for her discharge on the following grounds:

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i) On the same allegations the disciplinary authority/second respondent initiated disciplinary proceedings against the petitioner. The enquiry Officer indicted the petitioner.

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(ii) The disciplinary authority rejected the report of the Enquiry Officer and exonerated the petitioner. Therefore there were no grounds to proceed against the petitioner to frame the charge.

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The prosecution opposed the applications.

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The applications and the statement of objections of the parties in all the three cases were similar.

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The trial Court on hearing the parties in all

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the cases rejected the applications on the ground that

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Crl.R.P.No.535/2011 C/W Crl.R.P.Nos.536/2011, 537/2011

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the proceedings in departmental enquiry and prosecution in criminal case were two distinct and independent proceedings. Though the allegations in both the proceedings are same, the trial Court on perusal of the documentary evidence furnished along with the charge sheet, held that there was prima facie material to proceed against the petitioner and there were no grounds to discharge.

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Aggrieved by the orders in

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C.C.Nos.21372/2007, 21371/2007 and 21373/2007, the petitioner has filed Crl.R.P.Nos.537/2011, 536/2011 and 535/2011 respectively.

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Sri P.N.Nanjareddy, learned counsel for the petitioner reiterating the grounds of the revision petition seeks to assail the impugned orders on the following grounds:

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i) The allegations in the disciplinary proceedings and the criminal proceedings were one and the same. On exoneration of the petitioner in the disciplinary proceedings, the proceedings against the petitioner in

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Crl.R.P.No.535/2011 C/W Crl.R.P.Nos.536/2011, 537/2011

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the criminal proceedings amount to futility and therefore, she was entitled for discharge;

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ii) On the basis of the cheque allegedly issued by the petitioner referred to in the complaint, respondent No.2 prosecuted the petitioner for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (‘the Act’ for short) and she was convicted by the trial Court. However, having regard to the order in the disciplinary proceedings the first appellate Court in Crl.A.No.108/2009 acquitted her.

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iii) The disciplinary authority though exonerated the petitioner continued her suspension order. That was challenged before this Court in W.P.No.15158/2006 (S-Dis). Considering the order passed by the disciplinary authority on 20.04.2009, this Court vide order dated 05.06.2009 allowed the petition and the order of suspension at Annexure-A was quashed.

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iv) In the light of such orders, there was no ground to proceed against the petitioner. Therefore, the

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Crl.R.P.No.535/2011 C/W Crl.R.P.Nos.536/2011, 537/2011

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trial Court committed impropriety and illegality in rejecting the applications for discharge.

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In support of his contention he relies upon the following judgments:

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i) T.M.Tank vs. State of Gujarat and others¹

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ii) P.S.Rajya vs. State of Bihar²

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iii) Radheshyam Kejriwal vs. State of W.B. and another³

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Per contra Sri K.V.Narasimhan, learned

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counsel for respondent No.2 and Learned HCGP seek to justify the impugned order on the following grounds:

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i) The disciplinary authority though rejected the report of the Enquiry Officer did not exonerate the petitioner, but it ordered to hold a fresh enquiry conducting fresh audit and continued her suspension. Therefore the contention that the disciplinary authority exonerated the petitioner was unsustainable;

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1(2006)5 SCC 446

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2 (1996)9 SCC 1

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3 2011 Crl.L.J.1747

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Crl.R.P.No.535/2011 C/W Crl.R.P.Nos.536/2011, 537/2011

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ii) The Sessions Court set aside the order of conviction under Section 138 of the Act based on the order of the disciplinary authority and that has no bearing on the prosecution of the petitioner in the present cases;

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iii) Though this Court in W.P.No.15158/2006 quashed the suspension order, held that the order quashing the suspension will not preclude the Board from taking action against the petitioner in accordance with law and thereby reserved liberty to Board to hold enquiry.

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iv) The disciplinary authority vide order dated 07.10.2020 recalled the earlier order dated 20.04.2009 directing the fresh audit, therefore the order dated 20.04.2009 does not survive;

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v) Since the order of the trial Court is based on sound reasonings, this Court cannot interfere with the same in revisional jurisdiction.

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Crl.R.P.No.535/2011 C/W Crl.R.P.Nos.536/2011, 537/2011

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In support of their contention, they rely on the following judgments:

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i) Munna Devi vs. State of Rajasthan and another⁴

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ii) M.Venkatappa vs. Bengaluru Mahanagara Palike⁵

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iii) B.N.Dhotrad vs. The Board of Directorscum-Appellate authority and others⁶

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These being revision petitions under Section 397 of Cr.P.C., unless it is shown that the impugned orders of rejection of application for discharge suffer illegality, impropriety or incorrectness in the supervisory jurisdiction this Court cannot interfere with the same.

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The petitioner sought her discharge relying on

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Section 239 of Cr.P.C. which reads as follows:

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“ 239. When accused shall be discharged :- If, upon considering the police report and the

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4 (2001)9 SCC 631

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5 ILR 2005 Kar 5042

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6 ILR 2006 Kar 3163

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Crl.R.P.No.535/2011 C/W Crl.R.P.Nos.536/2011, 537/2011

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documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless , he shall discharge the accused, and record his reasons for so doing”.

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Reading of the above provision makes it clear that the accused at the stage of 239 of Cr.P.C. can be discharged only if the learned Magistrate considers the charge against the accused groundless. Even Section 245 of Cr.P.C. enables to discharge the accused only on perusal of records if court is satisfied that there are no grounds to proceed against the accused. It is settled position of law that at that stage, the trial Court cannot hold a mini trial.

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In the cases on hand, it was not the case of the petitioner herself that in the charge sheets there were no materials against her. Her sole contention was that in the disciplinary proceedings against her, which were based on the same allegations, she was exonerated and therefore, she was entitled for discharge in these cases. According to her, that was the

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Crl.R.P.No.535/2011 C/W Crl.R.P.Nos.536/2011, 537/2011

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only ground preventing the prosecution in the

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proceeding against her.

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Consequent to that order of the Disciplinary Authority dated 20.04.2009, the parties have entered into web of litigations. Even in the order of the Disciplinary Authority, the petitioner’s suspension order was continued. Therefore, she filed the Writ Petition No.15158/2006 in which her suspension order was quashed. Further based on that order the petitioner was acquitted in Crl.A.No.108/2009 on 21.11.2009. Though the Disciplinary Authority under its order dated 07.10.2020 recalled its earlier order dated 20.04.2009 rejecting the report of the Enquiry Officer, admittedly, the petitioner has challenged that subsequent order before this Court in Writ Petition No.12591/2020. Admittedly, on 10.11.2020, this Court in the said writ petition has stayed the order of the Disciplinary Authority dated 07.10.2020.

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Whatever may be those subsequent events, this Court has to test the impugned orders. Whether on

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Crl.R.P.No.535/2011 C/W Crl.R.P.Nos.536/2011, 537/2011

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the date of passing of the order there was no ground to proceed against the petitioner.

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The trump card of the petitioner for seeking discharge was the Disciplinary Authority’s order dated 20.04.2009. The petitioner claims that she is exonerated by the said order. But the Disciplinary Authority rejects the report of the Enquiry Authority on the following grounds:

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(i) Principles of natural justice were not

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adhered;

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(ii) The petitioner was not the only person involved in misappropriation and evidence on record shows that some other employees were also involved. But, only the petitioner was victimized; &

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(iii) Audit reports were not acceptable,

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therefore, fresh audit of the records were required.

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In the very same order at page 21, the Disciplinary Authority held as follows:

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“I am not for a moment say that this employee is not involved, but there is truth in her

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Crl.R.P.No.535/2011 C/W Crl.R.P.Nos.536/2011, 537/2011

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statement that she is made as scrapegoat to protect the real culprits.”

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In page 23 of the order, the Disciplinary

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Authority held as follows:

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“Therefore the manner in which the charges are framed, I strongly conclude that it is only to fix some responsibility on someone to close the issue. Hence, this farce enquiry is conducted.

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In para 23 while dealing with charge No.7, the Disciplinary Authority held that the self cheques were

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drawn to prove dishonest intention behind that. Ultimately, in the operative portion of its order, the Disciplinary Authority though rejected the report of the Enquiry Officer, ordered to continue the suspension of the petitioner. It further held that fresh audit shall be conducted and all the persons responsible for misappropriation and pilferage as per the report of fresh audit team shall be charged.

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The reading of the document relied upon by the petitioner herself, it becomes clear that she was not given clean chit in the said cases. Even if the order of the Disciplinary Authority dated 20.04.2009 was taken

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Crl.R.P.No.535/2011 C/W Crl.R.P.Nos.536/2011, 537/2011

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into consideration, it could not have been concluded that absolutely there was no ground to proceed against the petitioner. Therefore, the trial Court was justified in rejecting her application for discharge.

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In the judgments relied upon by learned Counsel for the petitioner based upon the facts and circumstances of those cases, it was held that once the departmental proceedings were closed, based on the same evidence the chances of succeeding in the criminal proceedings was improbable. Therefore, accused were discharged.

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But in these cases, as per the petitioner’s own documents, departmental proceedings against her were not totally closed. Under the circumstances, the said judgments were not applicable. This Court does not find any illegality, impropriety or incorrectness in the impugned orders of the Courts below. Therefore, the petitions are dismissed.

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Sd/JUDGE

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akc

Smt M R Vimala W/O Sri Jayaram v. the State by Sheshadripuram Police

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Smt M R Vimala W/O Sri Jayaram v. the State by Sheshadripuram Police

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