Allowed

Subramani v. the State Rep by

Madras HC24 Mar 2021CRL OP/31009/2019

Case brief

AI extract

What is this about?

High Court quashed criminal proceedings for cheating and misappropriation instituted against a clerk who was exonerated in civil surcharge proceedings. The Court held that the authority found him merely a depositor without control and continued proceedings would be an abuse of process.

What did the court decide?

Criminal proceedings in C.C.No.225 of 2017, 226 of 2017 and C.C.No.27 of 2012 quashed only insofar as the petitioner is concerned.

Subramani Vs the State Rep by — Quashing and FIR | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 24.03.2021

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CORAM

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THE HON'BLE MR. JUSTICE N.ANAND VENKATESH

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Crl.O.P.Nos.31009 of 2019 and 1261 & 2836 of 2021

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Crl.M.P. Nos.16874 of 2019 and 757, 1313 & 1578 of 2021

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Subramanian ... Petitioner in all the Crl.O.P's.

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Vs.

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State Rep. By Inspector of Police, CCIW, CID, Chennai PS 2. Nanganallur Co-operative Building Society Ltd., Nanganallur, Chennai - 600 061. Rep. by its Special Officer. ... Respondents in all the Crl.O.P's

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Prayer in Crl.O.P.No.31009 of 2019:- Criminal Original Petition filed under Section 482 Cr.P.C. to call for the records in C.C.No.27 of 2012 on the file of the Judicial Magistrate - I, Chengalpattu and quash the same.

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Prayer in Crl.O.P.No.1261 of 2021:- Criminal Original Petition filed under Section 482 Cr.P.C. to call for the records in old C.C.No.28 of 2012 in New C.C.No.226 of 2017 on the file of the Judicial Magistrate - I, Chengalpattu wherein FIR was registered in Alandur subsequently transferred to Chengalpattu and quash the same.

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Prayer in Crl.O.P.No.2836 of 2021:- Criminal Original Petition filed under Section 482 Cr.P.C. to call for the records in old C.C.No.29 of 2012 in New C.C.No.225 of 2017 on the file of the Judicial Magistrate - I, Chengalpattu, wherein FIR was registered in Alandur subsequently transferred to Chengalpattu and quash the same.

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https://hcservices.ecourts.gov.in/hcservices/

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In all the Crl.O.P's:

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For Petitioners : Mr.P.Chandrasekar

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For Respondents : Mr.C.Raghavan Government Advocate for R1

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C O M M O N O R D E R

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The issues involved in all these writ petitions are common and hence, they are taken up together, heard and disposed of through this common order.

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The subject matter of challenge in all these writ petitions pertains to the criminal proceedings pending before the Court below for an offence under Section 408, 409, 477A, 420 r/w section 34 of IPC. In all these proceedings, the petitioner has been arrayed as A3.

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Initially, the proceedings were pending before the learned Judicial Magistrate, Alandur and thereafter, it has been transferred to the file of the Judicial Magistrate I, Chengalpet and it has been renumbered as CC No.225 of 2017, 226 of 2017 and 227 of 2017.

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The case of the prosecution is that the petitioner was working as a clerk in the society. An enquiry was initiated against the President, Secretary and the clerk belonging to the society and based on the report, surcharge proceedings were initiated against the petitioner under Section 87 of the Cooperative Societies Act. The main charge against the accused persons is that they have misappropriated certain amounts which were drawn through cheques and thereby, have caused a loss to the society.

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An order was passed by the Deputy Registrar of Cooperative societies ordering recovery of money from the petitioner in the surcharge proceedings. Aggrieved by the same, the petitioner filed an appeal before the Principal District Judge, Chengalpet, in Co-operative Civil Miscellaneous Appeal No.8 of 2010. The Appeal was allowed by an order dated 15.02.2018. The relevant portions in the order is extracted hereunder :-

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The explanation offered by him in document no.2 categorically is as follows :

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"fhnrhiyfspy; ifbahg;gkpLk; mjpfhuk; vdf;F fpilahJ/ r';fj;jpw;F epjp

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https://hcservices.ecourts.gov.in/hcservices/

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njitg;gLk; rkak; jdf;fhf vd fhnrhiyfspy; brayh; kw;Wk; jdp mYtyh;fs; ifbahg;gkpl;L t';fpapypUe;J gzk; bgw;W tUk;go gzpf;fg;gLthh;fs;/ ehd; t';fpf;F brd;W gzk; bgw;W r';fj;jpy; xg;gilj;J tpLntd;/ ,Jnghd;W r';fj;jpw;fhf njitg;gLk; epjpia mt;tg;nghJ r';fj;jpd; rhh;ghf kw;w gzpahsh;fSk; fhnrhiy bgw;W brd;W t';fpapypUe;J gzk; bgw;W r';fj;jpy; xg;gilj;J tpLthh;fs;/ bjhif U/2.40.000-? mt;tg;nghJ t';fpapypUe;J bgw;W r';fj;jpy; xg;gilj;J tpl;ljhy; ehd; ve;j KiwnfLk; bra;atpy;iy vd;Wk; epjp ,Hg;g[ VJk; Vw;gLj;jg;gltpy;iy vd;gij gzpt[ld; bjhptpj;Jf; bfhs;fpnwd;/ " Such an explanation has not been considered in the light of documentary evidence available with the society and the bank authorities by the enquiry officer. Apart from that, the present appellant is only a clerk.Admittedly, he was not in control over the financial affairs of the society. He is a subordinte to the secretary and the Special officer suppose to be act as per the direction of the Secretary and the Special officer. The said three cheques were not given in the name of the appellant. So the withdrawal is for the benefit of the society or for the benefit of the secretary the signatory of the cheques. Under such circumstances,a person who has not signed the cheques could not be held responsible for the misappropriation if any by the Secretary or the superiors of the present appellant. The enquiry officer has not considered the responsibility of the present appellant before passing of impugned surcharge proceedings. Thus this Court find with regard to the appellant surcharge proceedings is liable to be setaside. Thus this Court finds the appeal deserves to be allowed. 6. In the result, the Co-operative Civil Miscellaneous appeal is allowed. The Surcharge proceedings passed in Tha.Thee No.1/2009-2010'E'dated 06.04.2010 by the Deputy Registrar of Co-operative Societies (Housing) Chengalpattu Region, Chengalpattu is set aside in respect of the present appellant alone.

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The Criminal Proceedings were initiated based on the very same facts for which sur charge proceedings were initiated against the petitioner. The main ground that has been taken by the petitioner in all these petitions is that once the petitioner has been exonerated from the surcharge proceedings, the same will enure to the benefit of the petitioner in the criminal proceedings also and no useful purpose will be served in continuing with the criminal proceedings, more particularly, since the proceedings have been pending without any progress from the year 2012 onwards.

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https://hcservices.ecourts.gov.in/hcservices/

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Heard the learned counsel for the petitioner and Mr.Mohammed Riyaz, learned Additional Public Prosecutor appearing on behalf of respondents.

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The petitioner was working as a clerk in the society. The allegation made against the petitioner is that he had deposited the cheques which was signed by the Secretary of the society and the money was withdrawn and handed over to the Secretary and this money was subsequently misappropriated. The Co-operative Tribunal while considering the Appeal filed by the petitioner accepted the explanation given by the petitioner that he was not in control over the financial affairs of the society and he has only acted as per the directions of the Secretary and the Special Officer. The Tribunal also found that the cheques were signed by the Secretary and the petitioner had merely deposited these cheques and withdrawn the money and handed over the same to the Secretary. The Tribunal therefore found that the petitioner had no role to play in the misappropriation since the money had ultimately reached the hands of the Secretary, who was the beneficiary in the entire transaction.

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This Court had an occasion to deal with a similar issue in Crl OP No.1297 of 2015. The relevant portions in the order is extracted hereunder :-

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It is clear from the above order that the Department has failed to prove the fact that it was the petitioner who was instrumental in fabricating the bogus ration cards. The concerned authority has come to a categorical conclusion that the petitioner has accounted for the amount received by distributing essential commodities and has also paid the same to the Co-operative Society. The concerned authority has also given a categorical finding that the 34 Ration Cards have been specifically mentioned in the Register maintained in the Fair price shop and it is towards these ration cards, the essential commodities have been supplied to the card holders.

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It is true that the finding of the concerned authority will not have a binding effect in the Criminal proceedings. However, the factual finding given by the concerned authority will have a persuasive value and the same can be taken into consideration by the Court while dealing with the Criminal Proceedings. After all these are factual findings which forms the basis for the Criminal proceedings also.

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In view of the above, this Court is of the considered view that no offence has been made out

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https://hcservices.ecourts.gov.in/hcservices/

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against the petitioner and the continuation of the Criminal Proceedings against the petitioner will amount to an abuse of process of Court.

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The above reasoning given by this Court will squarely apply to the facts of the present case also. Where the petitioner has been exonerated from all charges by the Appellate Tribunal, the same will have a persuasive value and more particularly since the threshold for criminal proceedings is at a higher pedestral where the prosectuion has to prove the case beyond reasonable doubts.

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In the considered view of this Court, there are no additional incriminating materials against the petitioner except those that were available in the surcharge proceedings. Therefore, nothing more is going to come out from the trial.The proceedings has not progressed right from the year 2012 onwards and even after the transfer of the proceedings in the year 2017, there has been no progress in the trial.

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In view of the above discussion, this Court is of the considered view that no offence has been made out against the petitioner and the continuation of the criminal proceedings against the petitioner will amount to an abuse of process of Court.

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In the result, the proceedings in C.C.No.225 of 2017, 226 of 2017 and C.C.No.27 of 2012 on the file of the learned Judicial Magistrate I, Chengalpet, is hereby quashed only insofar as the petitioner is concerned. This Criminal Original Petition is accordingly allowed. Consequently, the connected miscellaneous petitions are closed.

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Sd/-

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Assistant Registrar(CS-IV)

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//True copy//

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Sub Assistant Registrar

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rka

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Judicial Magistrate - I, Chengalpattu

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The Inspector of Police, CCIW, CID, Chennai PS.

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https://hcservices.ecourts.gov.in/hcservices/

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The Public Prosecutor Madras High Court.

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+2cc to Mr.P.Chandrasekar, Advocate SR.No.19809, 19807

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Crl.O.P.Nos.31009 of 2019 and 1261 & 2836 of 2021

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RLD(CO) GMY(28/06/2021)

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https://hcservices.ecourts.gov.in/hcservices/

Subramani v. the State Rep by

Case brief

What is this about?

What did the court decide?

Subramani v. the State Rep by

Case brief

What is this about?

What did the court decide?

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