Petitioner sought to quash criminal proceedings alleging misappropriation of funds by a Cooperative Society, arguing criminal action was premature because prior surcharge proceedings were set aside. The Bench held that prior administrative outcomes are not binding and quashing was not warranted.
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THE HON’BLE SRI JUSTICE N.RAVI SHANKAR
CRL.P.No.6722 OF 2008
ORDER:-
Heard Sri I.Ravindra Babu, learned Counsel for the petitioner and the learned Additional Public Prosecutor.
2. The de facto complainant is the second respondent i.e., the Divisional Cooperative Officer, Machilipatnam, Krishna District. He is not served but since learned Additional Public Prosecutor is representing the first respondent and as the second respondent is also an official of the Government of Andhra Pradesh, the matter is taken up, as learned Additional Public Prosecutor argued it for him also.
3. The petitioner herein is the first accused in C.C.No.5 of 2005, which is a police case pending on the file of the Court of the Additional Judicial Magistrate of First Class, Avanigadda, Krishna District. There are altogether 19 accused in the said case and as already mentioned, the petitioner is the first accused in it. He filed this petition to quash the proceedings in the said case insofar as he is concerned.
4. The offences alleged in the above case are those punishable under Sections 406, 409, 420, 477(A), 467, 427, 468, 471, 201, 204 read with Sections 109 and 114 I.P.C. The matter relates to misappropriation of funds of a Cooperative Society called Lakshmipuram Primary Agricultural Cooperative Society. The petitioner is shown as its Paid Secretary. In the charge sheet, the misappropriated amount is mentioned as Rs.1,60,21,832.32ps. The allegations in the charge sheet would disclose role of this petitioner also. Therefore, going by the allegations in the charge sheet, which definitely disclose offences against this petitioner also, it follows that this is not a fit case for interference under Section 482 Cr.P.C.
5. Sri Ravindra Babu, however, relied upon one point in support of his contention that this Court should interfere in the matter. It is that earlier surcharge proceedings were initiated under Section 60 of the Andhra Pradesh Cooperative Societies Act, 1964 (for short, ‘the Act’) against the petitioner and some others also and the orders passed in the said surcharge proceedings went against the petitioner for recovery of certain amounts. Thereafter, this petitioner filed nine O.As. i.e., O.A.Nos.41 of 2004 to 49 of 2004 before the Andhra Pradesh Cooperative Tribunal, Vijayawada assailing the said surcharge proceedings, dated 25.02.2004. It is seen that the said Tribunal took up those nine O.As along with two other O.As and disposed of them by a common order, dated 24.10.2005, whereunder it held that the surcharge proceedings were not held in accordance with the provisions of the Act by following fair procedure and in that view of the matter, the Tribunal has set aside the surcharge proceedings and remanded the matters back to the concerned authority for passing fresh orders after giving due opportunity to the petitioner.
6. Sri Ravindra Babu’s argument is that since the surcharge proceedings are set aside, the criminal prosecution in respect of the amounts, which are covered by the surcharge proceedings, are not maintainable and therefore, the Criminal Case in question should be quashed on that ground alone. In support of this contention, he also placed reliance upon a decision, dated 03.04.2003, of this Court passed in W.P.No.4563 of 2003. In the said case, the petitioner therein questioned instructions/letter, dated 14.02.2003, of the Divisional Cooperative Officer, Guntur, which was sent to the third respondent therein i.e., Panidam Primary Agricultural Cooperative Society to initiate criminal action against the petitioner therein on the ground that surcharge proceedings were not initiated. It appears that in that case, the criminal action was not commenced and holding that surcharge proceedings have to be initiated and liability should be fixed
before launching prosecution, this Court has set aside the impugned letter, dated 14.02.2003, therein of the Divisional Cooperative Officer, Guntur.
7. In the present case, it may be noted that surcharge proceedings have already been initiated following the inspection of the audit of the funds of the society in question but what happened in this case is that the surcharge proceedings were set aside by the Cooperative Tribunal and the matter was remanded to the Tribunal for a fresh decision. Basing on the report of the Divisional Cooperative Officer, the concerned Investigating Officer investigated into the matter and filed the charge sheet not only against this petitioner but also against 18 others pleading that his investigation into the matter, which is also based upon the audit report, disclosed that the petitioner and the other accused in the case are guilty of the offences of misappropriation of the funds of the society. Hence, the petitioner has come to this Court after the surcharge proceedings were initiated and which went against him in the first instance. Hence, the facts are different in this case from those mentioned in the order in the aforesaid writ petition.
8. It may also be noted here that in the Act, there is no provision, which says that criminal proceedings cannot be initiated unless surcharge proceedings are successfully completed against the person, who is proposed to be prosecuted. In such a situation, the contention of the petitioner’s Counsel cannot be accepted on that ground also. It should also be noted that a police Investigating Officer to whom a complaint is made and the criminal Court before which the case has been filed have to independently assess the evidence and reach conclusions in the matter and proceedings in the other cases and their result may, at best, have some relevancy, but they are not binding on the Investigating Officer or the concerned Court.
9. For the aforesaid reasons, I am unable to agree with the
contentions of the petitioner’s counsel and the decision cited by him is easily distinguishable on facts. Accordingly, the Criminal Petition is dismissed.
_____________________ N.RAVI SHANKAR, J
05th December, 2011. AMD
THE HON’BLE SRI JUSTICE N.RAVI SHANKAR
CRL.P.No.6722 OF 2008
Date:05.12.2011
AMD
3 issues framed by the court
Whether a criminal petition for quashing proceedings be allowed on the ground that earlier civil surcharge proceedings were set aside.
Whether the outcome of administrative or quasi-judicial proceedings is binding on the Investigating Officer or the criminal court.
Whether criminal proceedings can be initiated before the completion of surcharge proceedings under the relevant Act.
Colour shows how this judgement treated each authority
W.P.No.4563 of 2003Distinguished¶6
2 provisions across 2 enactments
petitioner
Divisional Cooperative Officer, Machilipatnam
N.RAVI SHANKAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
