Allowed

J.Duraimunusamy v. State by

Madras HC6 Apr 2011CRL OP/23479/2010

Case brief

AI extract

What is this about?

The court allowed petitions to quash charges due to illegal misjoinder of distinct offences regarding two separate examination leakages, directing the trial court to split the case.

What did the court decide?

Petitions allowed, charges quashed, and case remitted to trial court to split into two separate occurrences and frame appropriate charges.

What the court decided

AI extract

J.Duraimunusamy Vs State by — Civil Procedure and Limitation | Madras HC (2011)

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(approver) C.Senthil (approver), V.Rajasekar (approver), P.Sudhakar (approver), Arunkumar (approver), during the year 2005, entered into a criminal conspiracy at Chennai and other places of Tamilnadu to cheat Tamilnadu Uniformed Services Recruitment Board (TNUSRB) in the matter of obtaining Question paper fraudulently in advance for the PC Examination held on 27.03.2005 and reexamination held on 1.6.2005 and in furtherance of the criminal conspiracy, that you J.Durai Munusamy (A1) and you Chinnathambi (A2), while working in TNUSRB, Chennai on deputation, by abusing your official position, fraudulently and dishonestly obtained Question papers viz. General Knowledge and Psychology for the written exam for recruitment of Grade.II Police Constables in advance for the exam held on 27.3.2005, that you J.Durai Munusamy (A1), in furtherance of the said criminal conspiracy, abused your official position and handed over copy of the Question papers for the written exam for recruitment of Grade.II Police Constables in advance to your relative Ms.S.Meena (A8) at Madurai. In furtherance of the criminal conspiracy, knowing fully well that the Question paper given to her by you J.Durai Munusamy (A1) was fraudulently obtained, you Ms.S.Meena (A8) received the same, used the said Question paper and scored high marks in the exam held on 27.3.2005. Further, in pursuance of the criminal conspiracy, you J.Duraimunusamy (A1) also distributed the question papers to your friend A.Gopalakrishnan (A14) at Madurai whose fiancee Ms.G.Thirumuthu Vallideivanani (A12) was appearing for the exam from Madurai. In addition, you J.Duraimunusamy (A1) also parted with a copy of the question papers to your friend Anbu @ S.Anbalagan (A3), that you A.Gopalakrishnan (A14), by abusing your official position and fraudulently obtained the Question papers for the written exam for recruitment of Grade.II Police Constables in advance from your friend J.Duraimunusamy (A1), handed over the same to his fiancee Ms.G.Thirumuthu Vallideivanai (A12) and you Ms.G.Thirumuthu Vallideivanai (A12), in furtherance of the criminal conspiracy, in spite of knowing fully well that the question papers given to you by A.Gopalakrishnan (A14) was fraudulently obtained, received and used the same and scored high marks in the exam. In furtherance of the criminal conspiracy you A.Gopalakrishnan (A14) by abusing your official position parted copy of Question papers for the written exam for recruitment of Grade.II Police Constables in advance to your friend A.Jeyamani, HC (A15).

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Further, you A2 handed over the copy of the said Question paper to your relative M.Elamathi (A9) at Dharmapuri and you Ms.M.Elamathi (A9), in pursuance of conspiracy, knowing fully well that the Question papers given by S.Chinnathambi (A2) was fraudulently obtained, received the same and used the said Question paper and scored high marks in the said exam. In pursuance of conspiracy, you S.Anbalagan, PC 20178 (A3) fraudulently obtained the Question papers for the written exam for recruitment of Grade.II Police Constables in advance for the exam held on 27.3.2005 from J.Duraimunusamy (A1), by abusing your official position, distributed the same to your friend N.Ravichandran (A4) and in pursuance of conspiracy, you N.Ravichandran (A4) by abusing your official position and knowing fully well that the question paper given by S.Anbalagan (A3) was obtained in a fraudulent manner, received the same and distributed it to candidates S.Mohan (Approver, K.Sivaraj (Approver), B.Nagamani (A11deceased accused) and D.Alamelu (Approver) and received Rs.20,000/- each from them as consideration. Further, you N.Ravichandran (A4) also parted with the copy of Question papers to your friends A.Karuppasamy (A5) and S.Devanath (A6). In pursuance of conspiracy, B.Nagamani (A11deceased accused) knowing fully well that the Question paper given to him by N.Ravichandran (A4) was fraudulently obtained, received the same and used the said Question paper and scored high marks in the exam held on 27.3.2005. In pursuance of conspiracy, you A.Karuppasamy (A5) by abusing your official position and knowing fully well that the Question paper obtained by you from N.Ravichandran (A4) was obtained in a fraudulent manner, dictated the Question paper over phone to R.Kaleeswaran, (Approver) a candidate for consideration. In furtherance of the criminal conspiracy, R.Kaleeswaran (Approver) knowing well that the Question papers dictated by A.Karuppasamy (A5) obtained in a fraudulent manner, received and used the same and scored high marks in the Examination for the recruitment for the post of Grade.II Police Constables. In furtherance of the criminal conspiracy, you S.Devanath (A6), by abused your official position and obtained the question paper fraudulently from N.Ravichandran (A4), conspired with your friend R.Manibalan (A7) and in pursuance of the said conspiracy, you abused your official position and passed on the Question paper to candidates S.Raja (Approver) and N.Elangovan (A10) through V.Santhosh Kumar and C.Ramamurthy (A31) respectively for monetary consideration and

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obtained Rs.60,000/- each from them. In pursuance of the conspiracy, S.Raja (Approver) obtained the question paper in advance fraudulently from S.Devanath (A6) and R.Manibalan (A7) for getting good marks. In furtherance of the criminal conspiracy, you C.Ramamurthy (A31) knowing fully well that the question paper given to you by S.Devanath (A6) and R.Manibalan (A7) was obtained fraudulently, received the same and passed it on to your nephew N.Elangovan (A10). In pursuance of the conspiracy, you N.Elangovan (A10) knowing fully well that the question paper given to you by S.Devanath (A6) and R.Manibalan (A7) through your uncle C.Ramamurthy (A31) was obtained fraudulently, received and used the same for scoring high marks in the exams, In pursuance of the conspiracy, you A.Jeyamani (A15) fraudulently obtained the Question papers for the written exam for recruitment of Grade.II Police Constables in advance from A.Gopalakrishnan (A14) at Madurai, conspired with your friend R.Muthukumarasamy (A29) and in furtherance of the criminal conspiracy passed on the same to Murugesan S/o Raju, a Retired Head Constable, for consideration and obtained Rs.9,000/-. In pursuance of the conspiracy, you Y.Jani Basha (A16), entered into a criminal conspiracy with B.Udayakumar (A17) and S.A.Sekar (A18) and in furtherance of the same, you fraudulently obtained the Question papers for the written exam for recruitment of Grade.II Police Constables in advance held on 27.3.2005 and subsequently along with B.Udayakumar (A17) and S.A.Sekar (A18), passed on the Question papers to C.Senthil (Approver), S.Satish (A20), V.Rajasekar (Approver) and P.Sudhakar (Approver) after obtaining consideration of Rs.50,000/-, Rs.80,000/-, Rs.80,000/and Rs.80,000/respectively from them and part of the said money was also deposited in the SB account of B.Udayakumar (A17). In furtherance of the said criminal conspiracy, you S.Sathish (A20) knowing fully well that the Question paper given by Y.Jani Basha (A16), B.Udayakumar (A17) and S.A.Sekar (A18), was obtained in a fraudulent manner, received the same and used it for scoring high marks in the exam. In pursuance of the conspiracy, Senthil (Approver), V.Rajasekar (Approver) and P.Sudhakar (Approver) knowing fully well that the Question paper given by Y.Jani Basha (A16), B.Udayakumar (A17) and S.A.Sekar (A18), was obtained in a fraudulent manner, received the same and used it for scoring high marks in the exam. That K.Elumalai (A27-deceased accused) who working as Head Constable -23917 in Stores Department of

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who was introduced to them by you N.Anandan (A30). In furtherance of the criminal conspiracy, you N.Anandan (A30) received a consideration of Rs.35,000/- from N.Prasad. In furtherance of the criminal conspiracy, you S.Devanath (A6) fraudulently obtained the question paper in advance for the re-exam held on 1.6.2005, parted with the same to you A.Karuppasamy (A5) and you N.Ravichandran (A4). You S.Devanath (A6) further by abusing your official position and passed over the re-exam Question paper to S.Raja (Approver) and to you R.Manibalan (A7), you R.Manibalan (A7) in turn by abusing your official position parted with the same to you N.Elangovan (A10) through your uncle C.Ramamurthy (A31). You A.Karuppasamy (A5), by abusing your official position and fraudulently obtained the re-exam Question paper from S.Devanath (A6) in advance, passed over the same to R.Kaleeswaran (Approver) and you A.Karuppasamy (A5). In furtherance of the criminal conspiracy, R.Kaleeswaran (Approver), knowing fully well that the Question paper given by A.Karuppasamy (A5) was obtained fraudulently, received and used the same and scored high marks in the re-exam. You A.Mathivanan (A24) fraudulently obtained the question paper from Jeevarathinam, (since expired) and in furtherance of the criminal conspiracy knowing fully well that the said Question paper has been obtained fraudulently, received and used the same and scored high marks in the re-exam. You D.Balaji (A13) by abusing your official position and fraudulently obtained re-exam Question paper in advance and passed over the same to your friend C.Pushparaj (A22). You C.Pushparaj (A22) fraudulently obtained the re-exam Question paper from D.Balaji (A13), knowing fully well that the Question paper was obtained in a fraudulent manner, abusing your official position and passed over the same to you K.Kuttiraj (A25), you M.Devika (A26) and D.Arunkumar (Approver). You D.balaji (A13) obtained consideration of Rs.10,000/- from Arunkumar (approver) through you C.Pushparaj (A22) for having parted with the Question paper. In pursuance of the criminal conspiracy, D.Arunkumar (approver), you K.Kuttiraj (A25) and you M.Devika (A26), knowing fully well that the re-exam Question paper was obtained fraudulently, received and used the same and scored high marks in the re-exam. You N.Ravichandran (A4), by abusing your official position and fraudulently obtained the Question paper in advance from you S.Devanath (A6), passed over the Question paper to S.Mohan (Approver), K.Sivaraj (Approver), B.Nagamani (A11- deceased accused) and D.Alamelu (Approver) for

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FOURTHLY, you J.Duraimunusamy, PC 1025 (A1), S.Chinnathambi, PC 571 (A2), S.Anbalagan, PC 20178 (A3), N.Ravichandran, PC 1400 (A-4), A.Karrupasamy, HC 2403 (A5), S.Devanath, HC 3488 (A6), R.Manibalan, PC 21181 (A7), A.Gopalakrishnan, PC 6266 (A14), A.Jeyamani, HC-1389 (A15), B.Udhaya Kumar, HC-1396 (A-17), S.A.Sekhar, HC 23875 (A18), K.Elumalai, HC-23917, Stores Department, 0/o DGP, Tamil Nadu (A27), R.Anbalagan, HC -444, PEW, Tiruvallur (A28), R.Muthukumarasamy , HC-811, Q Branch, Tirunelveli (A29) in pursuance of the conspiracy during the period and place as mentioned in the first charge being public servants posted as respective designations mentioned above in the Police Department of Tamilnadu by the use of corrupt or illegal means or abusing your position as public servants obtained the question papers i.e. General Knowledge and Psychology for the exam held on 27.3.2005 in advance for the respective candidates mentined in the first charge respectively and thereby you J.Duraimunusamy (A1), S.Chinnathambi (A2), S.Anbalagan (A3), N.Ravichandran (A4), A.Karrupasamy (A5), S.Devanath (A6), R.Manibalan (A7), A.Gopalakrishnan (A14), A.Jeyamani (A15), B.Udhayakumar (A17), S.A.Sekhar (A18), K.Elumalai (A27-deceased), R.Anbalagan (A28) , R.Muthukumarasamy (A29) committed offence punishable u/s 13(2) r/w 13(1)(d) of PC Act , 1988 and I charge you A1 to A7, A14, A15, A17, A18, A28, A29 for the offences punishable u/s 13(2) r/w 13(1) (d) of PC Act 1988 and within my cognizance. FIFTHLY, that you N.Ravichaandran, PC 1400 9A4), A.Karrupasamy, HC 2403 (A5), S.Devanath, HC 3488 (A6), R.Manibalan, PC 21181 (A7), D. Balaji, PC 18430 (A-13), B.Udhaya Kumar, HC 1396 (A-17), S.A.Sekhar, HC 23875 (A-18), S.Parthiban, PC-3510 (A-19), S.Gurumoorthy, PC 17147 (A-21), C.Pushparaj, PC 18505 (A-22) K.Elumalai, HC-23917, Stores Department, O/oDGP Tamil Nadu (A-27deceased), R.Anbalagan, HC-444, PEW, Thiruvallur (A-28) and N.Anandan, PC-23432, Tirumullaivoil PS (A-30) in pursuance of the conspiracy during the

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be continued insofar as A28 is concerned inasmuch as the entire case of the prosecution is based on the statement of Mr.Sivakumar. In my considered opinion, though this court can look into the said deposition of Sivakumar made before the enquiry officer in the disciplinary proceeding, the same cannot be treated as substantive evidence during trial of the criminal case. As of now, there are two different versions available, one made before the Metropolitan Magistrate under Section 164 of Cr.P.C. and the other made before the enquiry officer in the disciplinary proceedings. Both the statements have been recorded on oath. Both are of course contradictory. But, it is needless to point out that any former statement which contains a contradictory statement can be used by the adverse party only to contradict the maker of the statement during trial of the criminal case when he is examined as a witness. Here, in the cases on hand, at the time when Mr.Sivakumar is examined before the trial court by the prosecution, the defence would be at liberty to use the statement made before the enquiry officer for the purpose of contradicting him as provided in Section 145 of the Evidence Act. Equally, Mr.Sivakumar would be at liberty to offer explanation in respect of the said contradiction. Based on such contradiction and explanation, if any, the court may appreciate his evidence in the light of Section 155 of the Evidence Act. Despite the said contradiction, if sufficient explanation is offered in respect of the said contradiction, the trial court may even be prepared to act upon his evidence. Therefore, at this stage, it cannot be decided as to whether the evidence of Mr.Sivakumar will be accepted by the trial court during trial in view of the above contradictory statement made before the disciplinary authority. In such view of the matter, at this stage itself, this court cannot presume that he will stick on to his statement made before the disciplinary authority and that he may not offer any explanation regarding his earlier statement made before the court under Section 164 of Cr.P.C. As of now, the statement made by Mr.Sivakumar before the police [CBI] and before the Metropolitan Magistrate under Section 164 of Cr.P.C. are very much available upon which charges have been framed. Truthfulness or otherwise of such allegations are to be tested by examining Mr.Sivakumar. At that time , as I have already stated, the former statement made by Mr.Sivakumar before the disciplinary authority may be made use of by the accused to contradict. As held by the Hon'ble Supreme Court in Debendra Nath Padhi's case cited supra, it is only in a rarest of rare cases, while exercising the inherent jurisdiction this court can consider a document produced by the accused provided the said document is unimpeachable in character. In the instant case, the statement made by Sivakumar before the disciplinary authority cannot be stated to be a document of unimpeachable character so as to quash the charges. Thus, on the basis of the statement made by Sivakumar before the disciplinary authority, the charges framed against A28 cannot therefore be quashed.

J.Duraimunusamy v. State by

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