State Rep By vs K.P. Jai Xavier on 4 November, 2011

Madras High Court
State Rep By vs K.P. Jai Xavier on 4 November, 2011
       

  

  

 
 
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 04/11/2011

CORAM
THE HONOURABLE MR.JUSTICE S.PALANIVELU

Criminal Revision Case(MD)No.224 of 2011
and
Criminal Revision Case(MD)No.226 of 2011

State rep by
The Inspector of Police,
Vigilance and Anti Corruption,
Tirunelveli.
[Cr.No.07/2005]				... Petitioner
					    [in both Crl.R.Cs.]
						
Vs.

1.K.P. Jai Xavier
2.D.Karuppasamy
3.M.Jaya Ganapathy					
4.H.S.Surianarayanan
5.M.Venkatachalapathy
6.P.Chellappa
7.C.Jose Louis				... Respondents
    {R4 to R7 impleaded suo-motu	    [in Crl.R.C.224/2011]
      as per the order of this Court
      dated 23.06.2011}

S.Sreenivasamoorthy			... Respondent
 					    [in Crl.R.C.226/2011]

PRAYER

Criminal Revision Petition filed under Section 397 and 401 of the Code
of Criminal Procedure, to set aside the common order of discharging all the
respondents passed by the Chief Judicial Magistrate, Tirunelveli in
C.M.P.Nos.2604 of 2010 and 2276 of 2010 in Special Case No.02 of 2010 dated
27.12.2010.

!For Petitioner    ... Mr. P. Kandasamy
[in both Crl.R.Cs.]    Government Advocate [Crl.side]
^For Respondents   ... in Crl.R.C.No.224 of 2011
		        Mr. S. Shanmugavelayudham
		        Senior Counsel for
		        M/s.T. Kokilavane [for R1 to R3]
 		        Mr.R. Anand [for R4 to R7]
		        in Crl.R.C.No.226 fo 2011
 			Mr. P.T.S.Narendravasan
			
:COMMON ORDER

1. The petition filed by the respondents/accused 1 to 3 for discharging
them from the case in brief is as follows:

1.(a) The petitioners 1 to 3 are the accused 1 to 3, were working as
Executive Engineer, Assistant Executive Engineer and Junior Engineer
respectively in the Tirunelveli City Municipal Corporation during the relevant
period to this case and one Tr.R.Raghunathan, who was working as City Engineer
in the said Corporation who is in superior rank to the Executive Engineer and
his subordinates in the Said Corporation, He is the head of the Engineering
Section in the said Corporation.

1.(b) In the police report filed under Section 173(2) Cr.P.C., the
Inspector of Police, Vigilance and Anti-Corruption, Tirunelveli had levelled
charges for the offences under Section 120-B, 420, 468 and 471 I.P.C. against
all the eight accused and a charge for the offence punishable under section
13(2) r/w Sec.13(1)(d) of Prevention of Corruption Act, 1988 against A1 to A3,
that All the charges levelled are found to have been based merely on surmises
and conjectures and are found to be absolutely groundless, that even if the
allegations in the police report are taken at their face value, they do not make
out the ingredients of the offences for which charges have been levelled
therein, that the charges under Section 468 and 471 I.P.C.,are found to be the
outcome of gross misconception of law and facts and that neither the allegations
contained in the police report nor in the statement of witnesses nor in the
other documents relied on by the prosecution make out the ingredients of the
offence of forgery as defined under Section 463 and 464 I.P.C.,which is a sine
qua non for attracting Sec.468 I.P.C.

1.(c) There is absolutely no scope for a charge for the offence of
“forgery for purpose of cheating” punishable u/s 468 I.P.C which is just an
aggravated form of forgery, that even if all the mens rea and overt acts for the
offence punishable u/s 468 I.P.C are presumed to be true, they do not make out
the ingredients of the said offence and that the charge u/s 468 and 478 I.P.C
are found to have been levelled not only without any basis but also quite
contrary to the facts ex-facie available in the documents relied upon the
prosecution.

1.(d) The fundamental allegation upon which the prosecution has found its
entire case is that A6 and A7 recorded false measurements in the Measurement
Books as if earth and gravel had been filled in layers of 15 cm thick (each
layer 15 cm thick) watered and consolidated layer by layer but without actually
doing this work as found in the Measurement Books, that this fundamental
allegation itself stands disproved by Sec.161(3) Cr.P.C statement of
Mr.R.Regunathan, formerly City Engineer, Tirunelveli City Municipal Corporation,
who found to have stated that he supervised the Tirunelveli New Bus-Stand works
from 15.10.2001 onwards, that in the same statement he further stated as
follows: “nkw;go xg;ge;jf;fhuu; xt;bthU 15 br.kPl;lUf;Fk; gtu; nuhyiu
gad;gLj;jp/ jz;zPu; moj;J/ ,Wf;fk; bra;Jjhd; nkw;go gs;sk; epug;g[k; ntiyia
bra;jhu;.” This situation of facts unmistakably reveals that the
measurements/entries recorded by A6 and A7 are not false one.

1.(e) The technical report dated 2.8.2004 of witness No.22 Mr.A.Rampal
Singh does not improve in any manner the above said position of the prosecution
case, that this report is nothing but a self-serving evidence generated for the
purpose, that the Technical Report, being hit by sec.162 Cr.P.C., would be
totally inadmissible in evidence during trial. The said Rampal Singh, being not
an expert, his statement or report would not fall under the category of
“expert’s evidence or expert’s opinion.”, that it is realised from his report
that he has not carried out any test for ascertaining the percentage of
compaction attained by the filled up earth, that Mr.A.Rampal Singh has not
stated anywhere either in his report or in his statement as to on what
scientific basis he excepted, that he has stated in his report that the
measurements taken during his site inspection and verification during July 2004
tally with the measurements recorded in the Measurement Books during 2001 and
relied on for payments, that the fact that there was no variation in the depth
of earth filling even after 3 . years of its formation indicates that the filled
up the earth has not sunk even a centimetre in the course of this 3 . years and
that despite this, the investigating agency for reasons best known to it has
failed to take any effort to ascertain the percentage of compaction attained by
the filled up earth by any scientific methods and to bring before the Court the
outcome of such efforts to support its case.

1.(f) It is significant to note that Mr. Rampaul Singh has not stated in
his report that the compaction made is far below the required compaction, that
he has also not stated that the filled up earth has sunk at any place in the
entire extent of 19 acres of filled up area in the Bus Stand, that the entire
Bus Stand having 19 acres of area till 2004, that is even after the elapse of 3
. years from its formation, is a sufficient proof that the filled up earth has
attained full and complete compaction, that the New Bus Stand was put into
operation from March 2003, then onwards more than 750 buses get in and out of
the bus stand every day; the bus stand receives a large flow of water; heavy
rains have sunk into the filled up earth after its formation, that inspite of
all these factors the filled up earth has not sunk at any place till today and
that if it has sunk at any place, the investigating agency which after a long
and inordinate delay has filed its final report only in February 2010, would not
have failed to bring such events into evidence to support.

1.(g) In the police report, “forgery” is alleged to have been committed
for the purpose of cheating and ultimately “cheating” and “criminal misconduct
by public servants” are alleged to have been accomplished by “using as genuine
the forged documents”, “cheating” and “criminal misconduct by public servants”
being consequential offences and therefore, as things stand, if forgery goes,
the consequential offences of “using as genuine the forged documents”
“cheating”, and “criminal misconduct by public servants” cannot stand as they
are intimately connected with each other, that if all the mens rea and overt act
alleged in the police report against A1 to A3 in support of the charge for the
offence punishable u/s 13(2) r/w Sec.13(1)(d) of the P.C. Act, 1988 are presumed
to be true, they do not make out the ingredients of the said offences and that
A1 to A3 are public servants, previous sanction of the Government of Tamilnadu
u/s.197(1) of Cr.P.C. is mandatory for a prosecution against them for the
alleged offences u/s 120-B, 420, 468 and 471 I.P.C.

1.(h) It is settled law that charge for an offence can be framed against
an accused only when the available materials arouse a strong and not a mere
suspicion as to the commission of that offence as well as the involvement of the
accused therein, that even in cases, where two views are possible, it is settled
law that the view favourable to the accused has to be followed, that the
criminal prosecution instituted against A1 to A3 in this case is wanting in
bona-fide and is frivolous, vexatious and rather oppressive.

2. In the counter filed on behalf of the respondent, it is stated as
follows:

2.(a) The materials in the form of oral as well as documentary evidences
are sufficient to establish the charges levelled against the accused, that it is
not correct to say that the allegations in the police report do not make out
the ingredients of the offences, that there is sufficient materials to make out
the charges against the accused even as per the averments stated in the police
report, that the available materials submitted along with the 173 Cr.P.C. report
are sufficient to frame charges u/s.468 and 471 I.P.C., that the allegations
contained in the police report and in the statement of witnesses and the
documents i.e., the measurements books and other documents relating to the
contract work done in the new bus stand would show that the entries made in
relation with the measurements of works done stage by stage in the measurement
books are false, due to this act the accused are liable for making false
documents, so the ingredients of the offence forgery as defined in Section 363
is made out.

2.(b) It is not correct to say that the allegations in the entire
prosecution records would not bring the case of making false documents which
amounts to forgery, that after the criminal conspiracy entered into between the
accused A1 to A8, false entries were made in the measurement books based upon
the bills were prepared, passed and the amount as per the calculations made as
if the works were done was disbursed to A8 the contractor, that the averments
whether the ingredients of the offences u/s 468 and 471 are made out or not can
be decided only after recording of the evidence and after the analysis of the
contents of the documents alleged to have been forged after let them in evidence
by marking as exhibits on the side of the prosecution.

2.(c) Witness No.21 Mr.A. Raghunathan’s statement would show that he never
check measured the work done and there is no records to show that watering and
consolidation work in the filled up layer of each 15 cm thickness were done by
the contractor, in this circumstances the presumption is he never supervised the
work by his personal inspections on the spot during the execution of the work
and so his version spoken in his statement that “nkw;go xg;ge;jf;fhuu; xt;bthU
15 br.kPl;lUf;Fk; gtu; nuhyiu gad;gLj;jp/ jz;zPu; moj;J/ ,Wf;fk; bra;Jjhd;
nkw;go gs;sk; epug;g[k; ntiyia bra;jhu;.” cannot be taken into account and it is
to be ignored.

2.(d) Witness No.22 Tr.A. Rampaul Singh is an Executive Engineer belongs
to P.W.D., at the relevant point of time worked as Executive Engineer in the
Directorate of Vigilance and Anti-Corruption, Chennai on deputation, that when
there is a technical expert available in the Headquarters of DVAC itself, it is
not necessary to address the Chief Engineer, P.W.D., Chennai, to nominate some
other officer for his assistance in technical matters during the investigation
of a case, that whether the technical report of Witness No.22 Tr.A.Rampaul Singh
has stated while testing upon the earth by making pits he found the earth is
very loose can be removable even by fingers itself without applying much force
and that in these circumstances to ascertain the compaction, it is not necessary
to test the earth with scientific methods. The non mentioning of the fact by
Mr.Rampaul sing that there are 2 or 3 different coloured layers of earth visible
on the vertical surface of the trial pits and what scientific basis he expected
are not at all a ground to suspect his report.

2.(e) The case of the prosecution is that the work was not done as per the
conditions of the contract so the earth has not sunk in the course of this 3 .
years wold not establish the fact watering and compaction were done during the
execution of the work, that the report would show that there is no sunk of earth
in the filling area where he made tests in the trial pits in 2 or 3 places, that
there is sufficient materials to prove that the measurements / entries recorded
in the measurement books are false and relied on that payments were made to the
contractor by the Tirunelveli, City Municipal Corporation, that according to the
police report it reveals that for getting pecuniary advantages the accused A1 to
A7 committed violations in relation to the entry of the actual measurements of
the works done in the Measurement Book the false measurements entered in the
Measurement Book and relied upon the bills were prepared and money for the work
is disbursed to the contractor and for that the said act, the accused are
liable for falsification of accounts for the purpose of cheating.

2.(f) There is sufficient evidence to show that the accused A1 to A3 has
committed an offence punishable u/s 13(2) r/2 13(1)(d) of the Prevention of
Corruption Act 1988, that due to the several act done by the accused A1 to A3
for wrongful gain it can be presumed that the acts were done in order to get
pecuniary advantages for themselves, that a charge of criminal conspiracy u/s
120(B) strong suspicion regarding the commission of the offence is sufficient,
meeting of minds in relation to the act to be done can be presumed from the
circumstances in which the offence is committed, that the Non-mentioning of the
provisions sec.197(1) which envisaged power to accord sanction in the sanction
order is only an omission, that it is mentioned in the Sanction Order in
G.O.Ms.No.253 dated 21.12.2009 that the Governor of Tamilnadu hereby accord
sanction for the prosecution of Tr. K.P.Jai Xavier, formerly Executive Engineer
now City Engieer and Tr.G.Karuppasamy, Assistant Executive Engineer, Tirunelveli
Municipal Corporation of the said offences by a cour to competent jurisdiction
which would show that sanction was granted for the prosecution of the accused.

2.(g) Available materials are more than sufficient to frame charges
against the accused as per the provisions of law mentioned in the police report,
that it is not correct to state that the prosecution is initiated against the
accused is not in a bona fide manner, that the power to discharge an accused in
a criminal case taken on file by the court on a police report should exercised
very sparingly and that to in the rarest of rare cases and that the petition
filed on behalf of the accused to discharge is devoid of merits and therefore it
is liable to be dismissed.

3. In the rejoinder filed on behalf of the petitioners, it is stated as
follows:

3. (a) In support of point of law urged in Para 7 touching Section 464
I.P.C.the petitioners rely on

1.State v. Parasram [AIR 1965 Rajasthan 9]

2.Md.Ibrahim & Ors v. State of Bihar & Anr.

[2009 SAR (Crl.) 961 (Supreme Court)]

3.Guru Bipin Singh v. Chontham Manihar Singh & Anr
[1997 Crl.L.J. 724]

3.(b) In support of the contention urged in Paras 25 & 26, the petitioner
rely on

1.Gowri Shankar Prasad v. State of Bihar
[AIR 2000 Supreme Court 3517]

2.Abdul Wahab Ansari v. State of Bihar & Anr.

[AiR 2000 Supreme Court 3187]

3.Suresh Kumar Bhikamchand jain v. Pandey Ajay Bhushan & Ors.
[1998 Crl.L.J.1242]

3.(c) The tenor of the counter filed by the prosecution triggers an
apprehension in the minds of the petitioners that the police report in this case
has been filed neither with a mere intention of carrying the law into effect nor
in furtherence of justice but with an ill-will of harassing the petitioners.

3.(d) As regards the principles of to be kept in view while considering
whther there is sufficient ground for proceeding against the accused the
petitioners invite the attention of this Court to the following decisions of the
Supreme Court.

i.Union of India v. Prafulla Kumar Samal & Anr
[1979 Crl.LJ 154 (Supreme Court)]

ii.Dilawar Babu Kurane v. State of Maharastra
[AIR 2002 Supreme Court 564]

iii.A.Mohemed v. State
[2006 (2) L.W.Crl. 752 (Madras High Court)]

iv.Ashok Chaturvedi and Ors v.Shitui H Chanchani & Anr.
[1998 Crl.L.J.4091 (Supreme Court)]

4. After hearing both sides, the learned Chief Judicial Magistrate,
Tirunelveli has allowed both the applications, discharging the petitioners and
also the accused who had not filed discharge petition, from the case. Hence,
the State has preferred these revisions.

5. Point for Consideration:

The following are the gist of the charge against the accused:

Some irregularities and malpractice done in executon of the construction
work of the new bus stand at Veinthankulam in Palayamkottai, Tirunelveli
District during 2000 to 2004. On a verification by way of the detailed enquiry,
it came to light that A1 to A3 in collusion with A4 to A7, private individuals
and representatives of M/s. Consulting Engineering Services Ltd., Chennai and A8
contractor [Sreepathy Associates, Erode] who executed the work, caused wrongful
loss to the Government to the tune of Rs.19,83,374.73.

6. Point:

7. Accused 1 to 3 were working as Executive Engineer, Assistant Executive
Engineer and Junior Engineer respectively in Tirunelveli Municipal Corporation.
8th accused is Managing Partner of the Contractor firm viz., Sreepathy
Associates, Erode, who had taken the contract for formation of the bus stand. A4
to A7 are the employees of private Engineering Consultancy. It is the
allegation that A1 to A3 were entrusted with the duty of supervising the works,
that A3 has recorded the measurements in the Measurement Book and A1 and A2 have
signed in the Measurement Books for having checked the measurements recorded by
A3. It is stated that they entered into a criminal conspiracy with A4 to A7
who are the employees of A8 consultancy, to do an illegal act to commit the
offence of cheating of public fund by illegal means, by preparing false
documents using them as genuine, in order to get pecuniary advantage for
themselves and thus conspired together for such purpose and hence liable to be
punished under Section 120(B) I.P.C.

8. They are further alleged to have entered into a criminal conspiracy,
fraudulently and dishonestly to cause wrongful loss to Tirunelveli Municipal
Corporation, A6 and A7 recorded false measurement/entries in the Measurement
Book as if the earth and gravel had been filled in layer of 15 cm thick (each
layer) watered and consolidated layer by layer but without actually doing the
work as found in the Measurement Book. By making false entries in the
Measurement Books, they have caused a pecuniary loss of Rs.7,24,574/- to the
said Corporation and thereby they are liable to be punished for the offences of
cheating and forgery punishable under Section 420 and 468 I.P.C. respectively.

9. In the course of the same transaction, A1 to A8 with the dishonest
intention, used forged Measurement Books and the bills and caused the bills for
Rs.7,24,574/- sanctioned and hence they are punishable under Section 471 I.P.C.

10. In the course of the same transaction A1 to A3 being public servants
by corrupt and illegal means and by abusing their official position, dishonestly
and fraudulently did several acts at every stage in committing the offence of
forgery and cheating in order to get pecuniary advantage for themselves and
thereby they have committed the offence of criminal misconduct punishable under
Section 13(2) r/w 13(1) (d) of Prevention of Corruption Act, 1988.

11. It is the first and foremost contention of the revision petitioner
that the work was not done as per the specification contained in the contract
that when the earth was filled in the site for every 15 cm, the layer should be
as per the percentage of compaction, that without carrying out the contract by
actually performing the work, all the accused conspired together, made false
entries into the measurement books and got the bills sanctioned for
Rs.7,24,574/- and hence they have caused monetary loss to the Tirunelveli
Municipal Corporation.

12. In order to prove the charges, the prosecution placed much reliance
upon the Super Check Report of one A.Rampal Singh, who was examined under
Section 161(3) Cr.P.C. as 22nd witness in this case. The total extent of site
for the formation of bus stand is 19 acres in Veithankulam village in
Tirunelveli near Palayamkottai. The said witness has taken up certain tests to
ascertain the quality of the work performed by the 8th accused. He made two
pits in different places in the site and observed in his report as follows:

5.1 Pit No.1: The size of the first pit is 2.45 m x 1.50 m x 3.40 m (Depth).
The initial level of the ground at this location before filling is 98.305 m as
per page 13 of level filed book No.1/2000. The final level of the ground at
this location after filling is 101.590 m as per page 25 of level filed book
No.5/2002. So the depth of earth filling at this location is 3.285 m
(i.e.101.590 m _ 98.305 m). It is observed that there is no variation in the
depth of earth filling at this location. But it is noticed that the earth
filling to the depth of 3.285 m has not been laid in 15 centimetre layers. As
per the specifications the earth filling to this depth of 3.285 metre has to be
done in not less than 22 layers of 15 centimetre thick earth. But at site the
entire filling has been done in three layer only. So it may be concluded that
the work has not been carried out as per agreement to the required
specifications.

5.2 Pit No.2: The size of the second pit is 1.65 m x 1.50 m x 1.55 (depth).
The initial level of the ground at this location before filling is 99.505 m as
per page 45 of level filed book No.1/2000. The final level of the ground at
this location after filling is 100.970 m as per page 57 of level filed book
No.5/2002. So the depth of earth filling at his location is 1.465 m (i.e.
100.970 m – 99.505m). it observed that there is no variation in the depth of
earth filling. But it is noticed that the earth filling to the depth of 1.465 m
has not been laid in 15 centimetre layers. As per the specifications the earth
filling to this depth has to be done in not less than ten layers of 15
centimetre thick earth. But at site the entire filling has been done in two
layers only. Also in two places in this pit the filled up earth is very loose
and the earth is removable even by fingers itself with out applying much force.
So it may be concluded that the work has not been carried out as per agreement
to the required specifications.

5.3. As per trial pits analysis it is deserved that the compaction made with
two or three layers will be for below the required compaction of 95% Due to the
low compaction the filed up earth will sink in due course of time causing
damages to the works such as roads. Pavements, bus bays, platforms, passenger
shed and other structures etc., provided over this filled up earth and thus
incurring frequent expenditure on repair and maintenance works. So it is opined
that the entire amounts paid for refilling under agreement item No.33 may be
considered as a loss to the Government.”

13. The witness is of the opinion that the earth filling to the depth is
not as per specification in both the test pits and as per the measurement and
that the filling of the depth in Pit No.1 should consist not less than 22 layers
of 15 centimetre thick earth. But he could see only two layers. As per his
opinion even the above said layers were below the required compaction of 95%.
He has also expressed his view that if such compaction was done it would lead to
sink in due course in various parts of the bus stand which are to be used for
various purposes viz., pavements, bus bays, platforms, passenger shed and other
structures etc.,

14. The witness inspected the site on 14.7.2004. The actual work was done
in the site in the year 2004. Even after three years, nobody is able to find
out damage nor sinking in the site. In this case, charge sheet was laid in 2010
and at that time also there was no damage etc., in the site. Hence, it could
not be stated that the work was not upto the specifications.

15. The witness has also observed that in two places in Pit No.2, the
earth was very loose and the same is removable even by fingers itself without
applying much force. It is not so in Pit No.1. Witness No.22 was an Executive
Engineer at the relevant period who was deputed to the Directorate of Vigilance
and Anti Corruption, Chennai, and was working as full time officer at the head
quarters of the investigating agency at Chennai. It is contended by the
respondents’ side that usual practice of the investigating officers addressing
the Chief Engineer of the Public Works Department, Chennai for nominating a
suitable officer of his choice for inspecting the site is deviated. It is also
argued that he is not an expert and he is not competent to offer any opinion,
besides contending that for ascertaining the compaction, no scientific
examination was adopted by him. Apart from physical verification of number of
layers available in the site the witnesses also tested the quality of the
compaction by utilising the fingers. Certainly, there could be a scientific
test for ascertaining the quality of the components or materials used for
filling up the earth. Such scientific method of approach was not adopted by the
witness. Ascertaining the quality of compaction by fingers is not at all a
scientific method and it is doubtful whether the same would help the prosecution
in sustaining the charge.

16. As far as the number of layers expected to be contained in the earth
filling is concerned, the Court below has expressed the opinion that the
compaction was not made in 2001 and January 2002 and hence it is remote to
expect the every layer of 15 cm could be distinguished. The said opinion
appears to be reasonable. It is also observed in the order challenged that the
sand would have been obtained from various quarries and the colour of the layers
may look different. It is also proper observation.

17. Whether the report of opinion of the witnesses could be supported by
other materials at the time of trial is another point to be borne in mind.

18. Witness No.21 is one R.Regunathan who was working as Superintending
Engineer in the office of the Commissioner of Municipal Administration, Chennai.
During the relevant period he was serving as City Engineer in the Tirunelveli
Municipal Corporation from 26.9.2001 to 4.6.2003. He had to inspect the works
which would cost more than Rs.10 lakhs. In his statement recorded under Section
161 (3) Cr.P.C., he has stated that from 15.10.2001 onwards he was supervising
the new bus stand formation work, that the contractor made the earth filling by
spreading water and used power roller and made compaction for every layer of 15
cms, of course there is no record to show the same. Witness No.21 was the City
Engineer of Tirunelveli Municipal Corporation. He is of the opinion that A8 has
carried out the work as per specification. His statement turns contra to that of
witness No.22. But the prosecution relies upon the statement of report of
witness No.22. There could be no justification to ignore the statement of
Witness No.21 as to the compaction for the layer of every 15 cms. At the time
of trial there would be every possibility for the Court to place reliance upon
the words spoken to by witness No.21. Hence, there could be no forgery nor
cheating on the part of the accused. The other consequential offences of using
forged documents as a genuine one and criminal misconduct by the accused would
not arise. The version of witness No.21 indicates that the work was done as per
the specifications contained in the contract. The Court may also record a
finding to that effect. There would be no ground for ignoring nor discarding
his evidence. Hence there is no scope for making false entries nor forging the
documents.

19. In the light of the above said observation, this Court is of the
considered view that there is no sufficient materials to frame charges against
the accused.

20. It is further contended by the accused side that necessary sanction
under Section 197(1) Cr.P.C. is wanting, since A1 to A3 are public servants.
But the Secretary to Government, Municipal Administration of Water Supply (ME-4)
Department, Government of Tamil Nadu, Chennai-9 has given a statement that after
applying his mind and satisfying himself he accorded sanction for prosecution of
A1 and A2. Hence the contention that proper sanction has not obtained has no
legs to stand.

21. The learned Government Advocate (Crl.Side) would rely upon a Full
Bench decision of the Supreme Court in 2005 SCC (Crl.) 415 [State of Orissa v.
Debendra Nath Panthi
] in which it is held that the law is that at the time of
framing charge or taking cognizance the accused has no right to produce any
material, that no provision in the Code of Criminal Procedure, 1973 grants the
accused any right to file any material or document at the stage of framing of
charge and that the said right is granted only at the stage of trial. The
observations are as under :

“18. … … … … The accused would be entitled to produce
materials and documents in proof of such a plea at the stage of framing of the
charge, in case we accept the contention put forth on behalf of the accused.
That has never been the intention of the law well settled for over one hundred
years now. It is in this light that the provision about hearing the submssions
of the accused as postulated by Section 227 is to be understood. It only means
hearing the submissions of the accused on the record of the case as filed by the
prosecution and documents submitted therewith and nothing more. The expression
‘hearing the submissions of the accused’ cannot mean opportunity to file
material to be granted to the accused and thereby changing the settled law. At
the state of framing of charge hearing the submissions of the accused has to be
confined to the material produced by the police.”

By this decision, earlier decision of the Supreme Court in Satish Mehra v. Delhi
Administration
[(1996) 9 SCC 766 : 1996 SCC (Cri) 1104] was overruled.

22. The learned Senior Counsel Mr.S. Shanmugavelayutham appearing for A1
to A3 would place reliance upon certain decisions of the Supreme Court and this
Court for supporting his contention.

(i) As to Discharge of Accused:

23. As far as the discharge of the accused from the case is concerned, the
Supreme Court has expressed its view in AIR 1979 SC 366 = 1979 Crl.L.J.154
[Union of India v.Prafulla Kumar Samal and another] that if two views are
equally possible and the Judge is satisfied that the evidence produced before
him while giving rise to some suspicion but not grave suspicion against the
accused, he will be fully within his right to discharge the accused. In the
case on hand, in the presence of the statement of witness No.21, the Court has
got reasonable suspicion over the statement of witness No.22. Hence, discharge
of the accused is proper.

24. The view expressed in Prafulla Kumar Samal’s case (supra) has been re-
stated by the Supreme Court in AIR 2002 SC 564 [Dilawar Babu Kurane v. State of
Maharashtra
]. It is also observed that the Judge cannot act merely as a post
office or a mouth piece of the prosecution, but has to consider the broad
probabilities of the case, the total effect of the evidence and the documents
produced before the Court but should not make a roving enquiry into the pros
and cons of the matter and weigh the evidence as if he was conducting a trial.

25. The decision in Prafulla Kumar Samal’s case (supra) has also been
followed by this Court in 2006(2) L.W.Crl.752 [A. Mohammed v. State rep. By The
Deputy Superintendent of Police, CBI, SCB Madras.]

(ii) as regards Forgery and using of Forged Documents as
genuine:

26. In AIR 1965 RAJASTHAN 9 [State v. Parasram] it is held that where the
prosecution case is not one of subsequent alteration of the document but is
essentially one of making initial incorrect and unauthorised entries in the
revenue record the marking of such entries cannot be said to constitute the
making of false document under Section 464 I.P.C.

27. In 1997 Crl.L.J. 724 [Guru Bipin Sing v. Chongtham Manihar Sincgh and
another] the Apex Court has observed that if forgery goes, cheating cannot
stand. So, the complaint does not make out out a case under any of the three
Sections, namely 420, 465 and 468. It may be pointed out that 468 is intimately
connected with 420 and 465 I.P.C.

28. The same view has been taken by the Supreme Court in 2009 SAR CRL.961
[Md. Ibrahim & Ors v. State of Bihar & Anr.]

(iii) As to the appreciation of expert evidence:

29. This Court in 2010 (3) M.L.J. (Crl.) 625 [K. Sulochana v. State rep.
By Inspector of Police ] has held that it is not desirable to impose a
conviction solely on the evidence of expert without corroborative evidence
either direct or circumstantial. In this decision the Court has followed the
following decisions of the Supreme Court.

1. 1996 SCC (Crl.) 792
[S.Gopal Reddy v. State of A.P. ]

2. 1977 (2) SCC 210: 1977 SCC (Cri.) 313
[Magan Bihari Lal v.State of Punjab]

3. AIR 1957 SC 381 : 1957 Crl LJ 559
[Ram Chandra v. State of U.P.,]

4. AIR 1963 SC 1728
[Ishwari Prasad Misra v. Mohdn. Isa,]

5. AIR 1964 SC 529
[Shashi Kumar Banerjee v. Subodh Kumar Banerjee]

6. AIR 1967 SC 1326 : 1967 (2) Andh LT 38
[Fakruddin v. State of M.P., ]

30. The same opinion has been rendered by this Court earlier in 2003
M.L.J.Crl.217 [K.Dhanasekaran v. State by Inspector of Police, C.B.,C.I.D.,
Erode].

(iv) with respect to conviction of non appealing accused:

31. In this case, A1 to A3 and A8 have filed petitions for discharge and
the Court below has discharged them and also the other non petitioning accused
viz., A4 to A7. It is legally permissible. The learned Senior Counsel for
respondents has cited the decisions of the Supreme Court for this proposition.
It is held by the Supreme Court in AIR 1988 SC 345 [Hari Nath v. State of U.P.]
that the conviction and sentence of non-appealing accused cannot be sustained
as the findings are inter-dependant and inextricably integrated.

32. A Full Bench of the Supreme Court in its decision JT 1992 (6) S.C.85
[Kameshwar Sing & Ram Babu Singh and others v. State of Bihar] has held that
when other accused are granted benefit of doubt, the non-appealing co-accused
are also entitled for the same grant and consequential acquittal. The same view
has been expressed by the Division Bench of this Court in 1999 (1) L.W. Crl.11
[Sobitharaj /6others v. State rep. by Inspector of Police, Kanyakumari
District.].

33. The learned Senior Counsel also submits that not only at the time of
trial such benefit will go to the accused but also at the time of interlocutory
proceedings, such as, quashing of criminal proceedings against the accused or
seeking for discharge from the case. In 1998 Crl.L.J.4091 (1) [Ashok Chaturvedi
and others v. Shitul H. Chanchani and
another] the Supreme Court while quashing
the private complaint laid against accused persons, it was also also quashed the
criminal proceedings against other accused, who did not prefer special leave
petition.

34. Following the above said decisions, this Court is of the view that
even though A4 to A7 accused have not preferred application for discharge they
are entitled to get the benefit when other co-accused are receiving the same.

35. Mr. R.Anand, learned counsel appearing for the accused 4 to 7 would
cite the decision of Prafulla Kumar Samal’s case supra, in which the Supreme
Court has formulated the Guidelines and principles in the matter of discharge of
the accused from a case followed by Courts. They are as follows:-
“10.Thus, on a consideration of the authorities mentioned above, the
following principles emerge:

(1) That the Judge while considering the question of framing the charges under
section 227 of the Code has the undoubted power to sift and weigh the evidence
for the limited purpose of finding out whether or not a prima facie case against
the accused has been made out:

(2) Where the materials placed before the Court disclose grave suspicion against
the accused which has not been properly explained the Court will be, fully
justified in framing a charge and proceeding with the trial.

(3) The test to determine a prima facie case would naturally depend upon the
facts of each case and it is difficult to lay down a rule of universal
application. By and large however if two views are equally possible and the
Judge is satisfied that the evidence produced before him while giving rise to
some suspicion but not grave suspicion against the accused, he will be fully
within his right to discharge the accused.

(4) That in exercising his jurisdiction under section 227 of the Code the Judge
which under the present Code is a senior and experienced Judge cannot act merely
as a Post office or a mouth-piece of the prosecution, but has to consider the
broad probabilities of the case, the total effect of the evidence and the
documents produced before the Court, any basic infirmities appearing in the case
and so on. This however does not mean that the Judge should make a roving
enquiry into the pros and cons of the matter and weigh the evidence as if he was
conducting a trial.”

36. A conspectus of the materials available in this case in the light of
the illuminating judicial pronouncements of the Supreme Court, it is concluded
that the accused are entitled to discharge from the case. This Court does not
find any valid ground to disturb the findings of the court below. The order of
the lower Court is not suffering from any infirmity, legally or factually. It
has to be confirmed and it is accordingly confirmed. These revision petitions
suffer dismissal.

37. In the result, both the Criminal Revision Cases are dismissed.

ggs

To
The Chief Judicial Magistrate,
Tirunelveli.

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