BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29/10/2010 CORAM THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN Crl.RC(MD)No.95 of 2008 Crl.RC(MD)No.124 of 2008 and Crl.RC(MD)No.125/2008 1.Thambiraj ...Petitioner/A1 in Crl.RC.95/2008 2.Palaniappan ...Petitioner/A2 in Crl.RC.124/2008 3.S.Sundaram ...Petitioner/A3 in Crl.RC.125/2008 Vs State by Inspector of Police CCIW CID, Karur .... Respondent in all Crl.RCs
Prayer
These criminal revision petitions are filed against the judgement of
the learned Sessions Judge, Karur passed in CA.Nos.47, 48 and 49/2007 dated
07.11.2007, confirming the judgement dated 21.7.2007 passed in CC.No.401/2004
by the learned Judicial Magistrate II, Kulithalai.
!For Petitioners ... Mr.S.Ramasamy ^For Respondent ... Mr.L.Murugan, GA :Order
These criminal revision petitions are filed by the revision
petitioners, who are arrayed as A1 to A3 in CC.No.401/2007 on the file of the
learned Judicial Magistrate II, Kulithalai.
2. The learned Judicial Magistrate II, Kulithalai in CC.No.401/2004
by judgement dated 21.7.2007, convicted and sentenced each of the revision
petitioners/A1 to A3 for the offence under Section 408 of IPC to undergo three
months Simple Imprisonment and to pay a fine of Rs.1000/- each, in default to
undergo two weeks Simple Imprisonment and acquitted them from the charges
levelled under Section 477A of IPC and also acquitted the co-accused/A4 from all
the charges levelled under Sections 408 and 477A read with Section 34 of IPC
3. In the appeals preferred by the petitioners/A1 to A3 in CA.Nos.47
to 49/2007, the learned Sessions Judge, Karur by judgement dated 7.11.2007,
dismissed the appeals, confirming the judgement of the trial court. Hence, these
criminal revision petitions have been filed by the revision petitioners/A1 to
A3.
4. The case of the Prosecution is as follows:-
There are totally four accused and the revision petitioners herein
are A1 to A3. A1 as the Manager, A2 as the Accountant and A3 as the Appraiser
and the other co-accused/A4 the Ex-President of the Jegathabi Handloom and
Weavers Cooperative Society caused loss to the Society in the manner of shortage
of stocks to the tune of Rs.1,98,334.90/- in respect of cloths and to the tune
of Rs.62,722.74/- in respect of threads. On 2.4.2004, the defacto complainant,
namely, the Assistant Director of Handloom, Karur gave the complaint to the
Superintendent of Police, CCIWCID, Chennai and the same was forwarded to the
respondent police, who registered a case on 26.5.2004. The respondent police
after investigation, on 16.10.2004, filed the final report against the all the
accused under Sections 408, 477A read with 34 of IPC.
5. The case was taken on file in CC.No.401/2004 by the learned
Judicial Magistrate II, Kulithalai and necessary charges were framed. In order
to substantiate the charges levelled against the accused, the prosecution
examined, as many as, seven witnesses (PW.1 to PW.7) and also relied on Exs.P1
to P24.
6. On completion of the evidence on the side of the prosecution, the
accused were questioned under Section 313 Cr.PC as to the incriminating
circumstances found in the evidence of prosecution witnesses and the accused
denied the same as totally false.
7. The trial court, after hearing the arguments advanced on either
side and looking into the materials available on record, found the
accused/revision petitioners/A1 to A3 guilty and awarded punishments as referred
to above and acquitted the co-accused/A4 from all the charged levelled against
him. In the appeals preferred by the revision petitioners, the lower appellate
court dismissed the appeals, confirming the judgement of the trial court. Hence,
these Criminal revision petitions have been filed by the revision petitioners/A1
to A3.
8. This court heard the submissions of the learned counsel on
either side and also perused the material records placed.
9. The learned counsel for the revision petitioners contended that
the case of the Prosecution solely rests on the evidence of PW.5 and originally
an Enquiry Officer, by name, Mohammed Anifa was appointed on 19.6.2001 and he
also submitted his report. As it was found that the enquiry was not conducted
properly, PW.5 Viswanathan was appointed as the Enquiry Officer vide
Na.Ka.No.1703/01 dated 22.4.2002. PW.5 has stated that he commenced the enquiry
on 22.4.2002, completed the enquiry on 31.12.2002 and submitted a report. PW.5
has admitted in his cross examination that the enquiry under Section 81(4) of
the Tamil Nadu Cooperative Societies Act (herein after referred to as the Act)
shall be completed within a period of three months from the date of ordering the
inquiry and if such an enquiry is not completed within three months from the
date of ordering the enquiry, then permission has to be sought for from the next
higher authority for extension of time. PW.5 has also admitted in his cross
examination that in this case, the enquiry was not completed within the period
of three months and there was no prior permission obtained by the enquiry
officer from the authorities concerned seeking for extension of time to complete
the enquiry.
10. The learned counsel for the revision petitioners contended that
there is no document produced by PW.5 to show that further time of six months
was given from the date of expiry of three months and therefore, he would
contend that as per Section 81 of the Act, it is mandatory to complete the
enquiry within three months from the date of ordering the enquiry and if such an
enquiry is not completed, then permission has to be sought for from the next
higher authority by giving valid reasons. However such extended periods shall
not exceed six months in the aggregate. In this case, since the enquiry has not
been completed within a period of three months and further there is no material
to show that extension of period was sought for and granted by the authority
concerned, the complaint itself is barred by limitation under Section 81(4) of
the Act, as the enquiry has not been completed within the stipulated time.
11. Section 81(4) of the Tamil Nadu Cooperative Societies Act reads
as follows:-
“The inquiry shall be completed within a period of three months from the date of
ordering the inquiry or such further period or period not exceeding three months
at a time as the next higher authority may permit, provided that such extended
periods shall not exceed six months in the aggregate”.
12. PW.5 has admitted in his cross examination as under:-
“22/4/2002y; Muk;gpj;J 31/12/2002 md;W vdJ tprhuizia Koj;njd;/ 81MtJ gphptpd; go
tprhuiz mjpfhhpahf epakpf;fg;gl;l njjpapypUe;J K:d;W khj fhyj;jpw;Fs; tprhuizia
Kof;f ntz;Lk; vd;why; rhpjhd;/ mt;thW ,y;yhj gl;rj;jpy; fhy ePl;og;g[ nfl;L
cah;mjpfhhpfSf;F vGjp fhy mtfhrk; bgw ntz;Lk; vdJ tprhuiz mwpf;ifapy; ve;j ve;j
njjpfspy; fhy ePog;g[ bra;J cj;jut[ gpwg;gpf;fg;gl;lJ vd;gjid vdJ mwpf;ifapy;
Fwpg;gpltpy;iy@
13. As per the mandatory provision under Section 81(4) of the Act,
in this case, admittedly, the enquiry has not been completed within three months
from the date of ordering of the enquiry and it is also seen that there is no
records produced by PW.5 to show that he has sought for permission for extension
of another six months time from the next authority to complete the enquiry and
the same has been granted. In this case, since as per the mandatory provision
under Section 81(4) of the Act, the enquiry has not been completed within the
period of limitation, the complaint itself is barred by limitation.
14. The learned counsel for the revision petitioners also drew the
attention of this court to the evidence of PW.5, wherein he has admitted that
the previous Enquiry Officer did not conduct the enquiry properly and that was
the reason for appointing PW.5 as the Enquiry Officer to conduct a fresh enquiry
under Section 89 of the Act. However, his evidence clearly disclosed that PW.5
also did not verify the records properly and he has admitted in his evidence
that he has not verified the textile and the yarn Stock Registers prior to
25.1.2001. He has also not produced those Stock Registers before the Court and
he would admit that only on verification of those Registers, the correctness of
the entries made in Exs.P8 and P17 could be determined. Further, he has not
denied the suggestion that only because there was no deficiency in the stocks
prior to 25.1.2001, the relevant stock registers have not been shown in the
enquiry report and produced before the court, but only claimed that he has no
knowledge about it. The evidence of PW.5 clearly indicated that prior to
25.1.2001, the records relating to stock registers of yarn and textile have not
been verified by the enquiry officer and therefore, no reliance could be placed
on the report Ex.P22 filed by PW.5 to fasten the liability on the revision
petitioners.
15. There is every force in the above contentions raised by the
learned counsel for the revision petitioners. The enquiry report submitted by
PW.5 disclosed that no proper verification was made with regard to the stock
registers and even as per the admission made by PW.5, prior to 25.1.2001 he has
not verified the stocks relating to yarn and textile to find out as to whether
there was any deficiency in the stocks prior to 25.1.2001.
16. On an analysis of the entire evidence both oral and documentary,
I am of the considered view that the courts below have overlooked the said
aspects. The mere fact that the petitioners were in charge for certain period
without there being any acceptable and cogent evidence that the deficiency
occurred only in the period during which the petitioners/A1 to A3 were in
charge, the petitioners cannot be fastened with criminal liability and
therefore, they are liable to be acquitted from all the charges levelled against
them and the conviction and sentence imposed on them are liable to be set
aside.
17. In the result, these criminal revision petitions are allowed.
The judgment of conviction and sentence imposed on the revision petitioners/A1
to A3 are set aside and they are acquitted of all the charges levelled
against them. The bail bond if any executed by the revision petitioners/A1 to
A3 shall stand terminated and the fine amount if any paid is ordered to be
refunded to them.
Srcm
To
1.The Additional District and Sessions Judge (FTC)
Virudhunagar
2.The Judicial Magistrate I, Virudhunagar
3.The Sub Inspector of Police,
Virudhunagar West Police Station, Virudhunagar District
4.The Additional Public Prosecutor, Madurai Bench
of Madras High Court, Madurai