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[2007 (1) T.N.L.R. 233 (Mad)]
MADRAS HIGH COURT
BEFORE:
A.C. ARUMUGAPERUMAL ADITYAN, J.
M/S. K.L. BASTIAN ...Appellant
Versus
M/S. ELECTRO WIRE LINK INDUSTRIES,
CHENNAI AND ANOTHER …Respondents
rd
[Criminal Appeal No. 351 of 1999, decided on 3 February, 2007]
Negotiable Instruments Act, 1981—Sections 138 and 139—Dishonour of
cheque—Complaint—Dismissal of—Cheque on presentation to bank returned back
with an endorsement “exceeds the arrangements”—Complainant issued a notice to the
drawer but no reply received—Cheque was found to be issued only for the amount of
future debt—In view of documentary and oral evidence, the offence punishable under
Section 138 of the Act not proved against accused—Therefore, impugned order of
dismissal of complaint and acquittal of accused passed by trial Court, not unjustified—
No interference called for.
(Paras 6 to 8)
Case law.—2002 MLJ (Cri) 257; 2005 MLJ (Cri) 26—referred.
Counsel.—Mr. K. Ashokan, Senior Counsel for M/s. Gita Ashokan, for the appellant,
Mr. M. Rajaraman, for the respondents.
JUDGMENT
A.C. ARUMUGAPERUMAL ADITYAN, J.—This appeal has been preferred against the
judgment in C.C.No.5095/1997 on the file of the Court of VII Metropolitan Magistrate,
George Town, Chennai. The complainant is the appellant herein.
2. The brief facts in the complaint preferred by the complainant for the offence
punishable under Section 138 of Negotiable Instruments Act, are as follows:—
In connection with the purchase of wires from the complainant-company the accused
had drawn a cheque for Rs.2,00,489/- on 31.12.1996. When the cheque was presented in the
bank on 06.06.1997, the same was retuned with an endorsement that “it exceeds the
arrangements”. Hence the complainant has issued a notice to the accused on 18.06.1997, but
the accused has not chosen to send any reply. Hence the complaint.
3. After taking the sworn statement of the complainant, the complaint was taken on file
by the learned Judicial Magistrate and the sommons were issued to the accused for
appearance. On appearance, the copies under Section 207 of Cr.P.C. were furnished to the
accused and when the offence was explained to the accused they pleaded not guilty. On the
side of the complainant, P.W.1 to P.W.4 were examined and Exs.P.1 to P.5 were marked.
On the side of the accused no oral evidence was let in, but Exs.D.1 to D.4 were marked.
4. P.W.1 in is evidence would depose that he is working in the complainant-company
as a manager and the complainant-company is indulged in hardware business and the accused
are having transaction in purchasing goods from the complainant-company from the year
1993 and that he was having a current account for the transactions and that the accused had
drawn a cheque for Rs.2,00,489/- dated 31.12.1996 and gave it to the complainant towards
the discharge of the debt. When the said cheque was presented with the bank on 5.6.1997 the
said cheque was returned with an endorsement “Exceeds Arrangements”. Ex.P.1 is the
returned cheque. Exs.P.2 & P.3 are the intimation memo received from the bank regarding
the return of the cheque. Ex.P.4 is the copy of the notice dated 18.6.1997 issued to the
accused. Exs.P.6 & P.7 are the acknowledgments. Ex.P.7 is the authorization letter.
5. P.W.2 is an Accountant in the Union Bank, Sembuthas Branch, Chennai, and that he
is working in the current account department. P.W.2 would depose that the accused is having
a current account and also availed cash credit facility and that Ex.P.1-Cheque came to the
said Branch of the Bank on 5.6.1997 and since there was no sufficient funds in the drawer’s
account the said cheque was returned with an endorsement “Exceeds the Arrangements”.
Ex.P.2 is the intimation of the bank of his branch. Ex.P.8 is the statement of accounts
maintained in the bank.
6. P.W.4 is the cashier of the complainant-bank. She would depose that the accused
had purchased steel wires from the complainant-company and for that purpose the accused
have maintained an account with the complainant. Ex.P.9 is the invoice dated 19.10.1995 for
a sum of Rs.79,359/-, Ex.P.10 is the invoice dated 12.4.1995 for a sum of Rs.21,498/-,
Ex.P.11 is the invoice dated 25.5.1995 for a sum of Rs.20,924/-, Ex.P.12 is the invoice dated
02.03.1996 for a sum of Rs.1,51,100/-, Ex.P.13 is the invoice dated 13.11.1995 for a sum of
Rs.60,441/-, Ex.P.14 is the invoice dated 15.4.1996 for a sum of Rs.37,190/-, Ex.P.15 is the
invoice dated 8.5.1996 for a sum of Rs.1,40,344/-.
7. When incriminating circumstances under Section 313 of Cr.P.C. were put to the
accused, the accused denied his complicity with the crime. On the side of the accused no oral
evidence was let in. Exs.D.1 to D.4 were marked. After going through the oral and
documentary evidence, the learned trial Judge has come to the conclusion that the offence
punishable under Section 138 of N.I. Act has not been proved against the accused and
consequently dismissed the complaint thereby acquitting the accused, which necessitated the
complainant to prefer this appeal.
8. Now the point for determination in this appeal is whether the judgment in
C.C.No.5095/1997 on the file of the VII Metropolitan Magistrate, Gorge Town, Chennai, is
liable to be set aside for the reasons stated in the memorandum of appeal?
9.The point:—
9(a) The learned senior counsel Mr.Ashokan, appearing for the
appellant/complainant, would contend that the learned trial Court has
dismissed the complaint on the ground that the complainant has failed to
prove that Ex.P.1-Cheque, which was bounced on presenttion, was drawn in
favour of the complainant only to discharge a debt, which is due to the
complainant in the course of business. The learned senior counsel focused
the attention of this Court to Ex.P.19-statement filed by the complainant and
contended that the learned trial Court has observed in its judgment at para 15
that according to the accused he has partially discharged the loan amount to
the tune of Rs.98,000/-, which was also admitted by P.W.1 in the cross-
examination, but the same was not given credit to in Ex.P.19. The learned
senior counsel would contend that as per Ex.P.19-statement a sum of
Rs.37,190/- was credited on 15.4.1996 and another sum of Rs.59,828 has
been credited on 8.5.1996 and as per Ex.P.5 another sum of Rs.1,491/- has
been credited towards the amount due to the complainant and that he would
contend that the reasoning stated by the learned trial Judge for the acquittal
of the accused on the above ground cannot be sustainable. But if we add
Rs.37,190/- + Rs.59,828/- + Rs.1491/- it comes to a total sum of Rs.98,509/-.
But as per Ex.D.1-invoice the goods supplied by the accused is for Rs.98,509.
The said goods were supplied to the complainant on 19.11.1996. But with
regard to this supply of goods there is no entry in Ex.P.19-statement at all.
Further it is pertinent to note that even Ex.P.19 it has been stated that a sum
of Rs.2,00,489/- is inclusive of 24% interest per annum charged up to
21.5.1997. So as per Ex.P.19 a sum of Rs.2,00,489/- is due to the
complainant only on 21.5.1997, whereas Ex.P.1-cheque is dated 31.12.1996.
For this discrepancy P.W.1 would say that Ex.P.1 was handed over to him
only after 21.5.1997. But there is absolutely no pleading in the complaint
preferred by the complainant to the effect that a post dated cheque has been
given for the amount due including the future interest at the rate calculated till
21.5.1997.
9(b) Section 138 of the Negotiable Instrument Act runs as follows:—
“Where any cheque drawn by a person on an account maintained by him with a
banker for payment of any amount of money to another person from out of that
account for the discharge, in whole or in part, of any debt or other liability, is
returned by the bank unpaid, either because of the amount of money standing to the
credit of that account is insufficient to honour the cheque or that it exceeds the
amount arranged to be paid from that account by an agreement made with that
bank, such person shall be deemed to have committed an offence and shall without
prejudice to any other provisions of this Act, be punished with imprisonment for a
term which may be extended to two years, or with fine which may extend to twice
the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless:—
(a) the cheque has been presented to the bank within a period of six months from
the date on which it is drawn or within the period of its validity, whichever is
earlier.
(b) the payee or the holder in due course of the cheque, as the case may be,
makes a demand for the payment of the said amount of money by giving a
notice, in writing, to the drawer of the cheque, within thirty days of the
receipt of information by him from the bank regarding the return of the
cheque as unpaid, and
(c) the drawer of such cheque fails to make the payment of the said amount of
money to the payee or, as the case may be, to the holder in due course of the
cheque, within fifteen days of the receipt of the said notice.
Explanation:—For the purpose of this section, “debt or other liability” means a legally
enforceable debt or other liability.
The explanation to Section 138 of N.I. Act clearly says that debt or other liability
means a legally enforceable debt or other liability. It is clear from Ex.P.19 that on the date of
drawal of cheque i.e., on 31.12.1996, the amount due to the complainant is not Rs.2,00,489/-.
But the amount due only on 21.5.1997 to the complainant is Rs.2,00,489/-.
9(c) The learned counsel relying on 2002 MLJ (Crl) 257 (Raghunathan v.
Selvarajan), contended that the Court has to presume that the cheque had
been issued for a debt or liability and that presumption is rebuttable and there
is no contra evidence let in by the accused. The facts of the above said case
are as follows:—
“The appellant filed a private complaint against Selvarajan-accused for the offence
under Section 138 of the N.I. Act. The trial Court convicted the accused. The first
appellate Court acquitted the accused. Hence, the appeal before this Court. The
first appellate Court while acquitting the accused has observed in its judgment that
the complainant did not prove that the cheque was issued towards the liability, and
accepted the case of the accused that the said cheque was given as security while
there was an oral agreement of sale between the complainant and the accused,
without considering the evidence of P.W.1/complainant proving the said aspect,
taking into account, Sections 118 and 139 of the Negotiable Instruments Act.”
While setting aside the first appellate Court’s judgment, the then learned Judge of this
Court (Now the Chief Justice of Jharkhand) has held as follows:—
“The judgment erroneously proceeds on the basis that the burden of proving
consideration for a dishonoured cheque is on the complainant. It appears that the
learned Judge had lost sight of Sections 118 and 139 of the Negotiable Instruments
Act. Under Section 118, unless the contrary was proved, it is to be presumed that
the Negotiable Instrument (including cheque) had been made or drawn for
consideration. Under Section 139 the Court has to presume, unless the contrary
was proved, that the holder of the cheque received the cheque for discharge, in
whole or in part, of a debt or liability. Thus in complaints under Section 138, the
Court has to presume that the cheque had been issued for a debt or liability. This
presumption is rebuttable. However, the burden of proving that a cheque had not
been issued for a debt or liability is on the accused.”
There cannot be any different view against the above dictum. But in the case on had as
per explanation to Section 138 of the N.I. Act, the complainant must prove that there was a
subsisting debt to which Ex.P.1-cheque was drawn by the accused. It is clearly seen from
Ex.P.19 itself that only for a future debt that will arise on 21.5.1997 inclusive of future
interest only a sum of Rs.2,00,489 will be due to the complainant, whereas Ex.P.1-cheque
was drawn on 31.12.19976. So it is clear that on the date of Ex.A.1, there was no enforceable
debt to the tune of Rs.2,00,489/-. Under such circumstances, the above said ratio will not be
applicable to the present facts of the case.
9(d) The learned counsel appearing for the appellant also relied on 2005 MLJ (Cri)
26 (Goa Plast (P) Ltd. v. Chico Ursula D’Suza). The brief facts of the said
case are as follows:—
“The respondent issued ten post-dated cheque of Rs.40,000 each in favour of the
appellant totalling Rs.4 lakhs for payment towards the liability of the amount
misappropriated from the funds of the appellant company. The respondent wrote a
letter to the appellant denying liability to pay the aforesaid sum for the reasons
given in the letter, dated 12.2.1993 (Annexure P-1). The appellant deposited the
first cheque for encashment. The said cheque was dishonoured by the bank on the
ground that the respondent had issued instructions to stop payment. The appellant
sent a legal notice to the respondent regarding the dishonour of the cheque and
demanding payment of Rs.40,000/- within fifteen days. As the respondent did not
comply with the aforesaid notice, a complaint was filed against the respondent
under Section1 42 of the Negotiable Instruments Act (hereinafter referred to as
“the Act”) for offence punishable under Section 138 of the Act. According to the
appellant, the respondent-accused was working as Managing Director of the
appellant company. The services of the respondent were discontinued from the
month of July, 1992. The appellant examined its General Manager on their behalf
to prove the complaint. The respondent in defence did not examine any witness.
The respondent also did not step in the witness box so as to subject himself to the
cross-examination. He only brought on record the letter dated 12.2.1993 written
by him to the Company. True copy of the advice from the bank dated 12.4.1993,
true copy of the complaint dated 6.3.1996 and true copy of the deposition have
been marked as Annexures P-2, P-3 and P-4.
The learned Judicial Magistrate, First Class vide order dated 25.8.1995 acquitted
the respondent holding that the petitioner failed to prove the liability and also
holding that the respondent had rebutted the statutory presumption under Section
139 of the Act. Aggrieved by the said order, the appellant preferred Criminal
Appeal No.37 of 1995 to the High Court of Judicature at Bombay which also
dismissed the appeal holding that the appellant had failed to prove the liability on
the part of the respondent to pay the sum in question. Aggrieved by the judgment
and order dated 12.1.1996 of the High Court of Bombay in Criminal appeal No.37
of 1995, an appeal was preferred before the Honourable Apex Court, wherein it has
been held by the Honourable Apex Court as follows:—
It has to be presumed that a cheque is issued in discharge of any debt or other
liability. The presumption can be rebutted by adducing evidence and the burden of
proof is on the person who wants to rebut the presumption. This presumption
coupled with the object of Chapter XVII of the Act which is to promote the
efficacy of banking operation and to ensure credibility in business transactions
through banks persuades us to take a view that by countermanding payment
payment of post dated cheque, a party should not be allowed to get away from the
penal provision of Section 138 of the Act. A contrary view would render Section
138 a dead letter and will provide a handle to persons trying to avoid payment
under legal obligations undertaken by them through their own acts which in other
words can be said to be taking advantage of one’s own wrong. If we hold
otherwise, by giving instructions to banks to stop payment of a cheque after issuing
the same against a debt or liability, a drawer will easily avoid penal consequences
under Section 138. Once a cheque is issued by a drawer, a presumption under
Section 139 must follow, and merely because the drawer issued notice to the
drawee or to the bank for stoppage of payment it will not preclude an action under
Section 138 of the Act by the drawee or the holder of the cheque in due course.
The object and the ingredients under the provision, in particular, Sections 138 and
139 of the Act cannot be ignored. Proper and smooth functioning of all business
transactions, particularly, of cheques as instruments, primarily depends upon the
integrity and honesty of the parties. In our country, in a large number of
commercial transactions, it was noted that the cheques were issued even merely as
a device not only to staff but even to defraud the creditors. The sanctity and
credibility of issuance of cheques in commercial transactions was eroded to a large
extent. Undoubtedly, dishonour of a cheque by the bank causes incalculable loss,
injury and inconvenience to the payee and the entire credibility of the business
transactions within and outside the country suffers a serious setback. Parliament,
in order to restore the credibility of cheques as a trustworthy substitute for cash
payment enacted the aforesaid provisions. The remedy available in the Civil Court
is a long drawn matter and an unscrupulous drawer normally takes various pleas to
defeat the genuine claim of the payee.”
The facts of the above case will not be applicable to the facts of the case on hand and
because the cheque drawn in the above said case was for an unenforceble debt on the date of
drawal of the cheque, whereas in the case on hand even the complainant’s own document
Ex.P.19 glares at us that on the date of drawl of Ex.P.1-cheque Rs.2,00,489/- was due to the
complainant only for the amount of future debt dated 21.5.1997, Ex.P.1-cheque was drawn
on 13.12.1996. So I am not at all convinced by the submissions made by the learned senior
counsel in this regard. I do not find any perverse attitude in the judgment of the trial Court to
warrant any interference from this Court. Point is answered accordingly.
10. In the result, the appeal is dismissed confirming the judgment in
C.C.No.5095/1997 on the file of the Court of VII Metropolitan Magistrate, George Town,
Chennai.
Appeal dismissed.
[2007 (1) T.N.L.R. 240 (Mad)]
MADRAS HIGH COURT
BEFORE:
M. THANIKACHALAM, J.
G. MANICKAM …Appellant
Versus
STATE …Respondent
[Criminal Appeal No. 359 of 1999, decided on 3rd February, 2007.]
Prevention of Corruption Act, 1988—Sections 7 and 13(1)(a), r/w Section 13(2)—
Indian Penal Code, 1860, Section 201—Illegal gratification—Acceptance by public
servant—Accused being a public servant not only demanded illegal gratification for
issue of community certificate but also accepted the same—Statement given by accused,
when examined under Section 313, Cr.P.C. proves beyond all reasonable doubt that he
had accepted the amount from PW 1 proceeded by demand and same should be the
illegal gratification—On facts and circumstances accused violated Sections 7 and
13(1)(a) r/w Section 13(2) of the Act in addition to Section 201, IPC—Trial Court
rightly convicted the accused.
(Paras 20 to 24)
Case law.—AIR 1999 SC 3706; 1998 Cri. LJ 782; 2006 Cri. LJ 518;—referred.
Counsel.— Mr. A. Immanuel, for the appellant, Mr. Hasan Mohammed Jinnah,
Government Advocate (Cri. Side), for the respondent.
JUDGMENT
M. THANIKACHALAM, J.—The accused in C.C.No.16 of 1990 on the file of the
District Judge-cum-Chief Judicial Magistrate, Krishnagiri, is the appellant.
2. The accused/appellant was employed as Junior Assistant (B-3 Section), Taluk
Office, Harur. In the said office, he was handling B-3 Section, which deals with the issuance
of Community Certificate. The de facto complainant-Velliangiri having filed an application
for obtaining Community Certificate approached the accused/appellant and it seems for
processing the file and for issuing certificate, the accused demanded a sum of Rs.400/-
originally, then reduced the same to Rs.300/- on 23.3.1989 which was agreed to by the de
facto complainant to be given on the next day. However, the de facto complainant reported
the matter to the Vigilance and Anti Corruption Department, who have arranged a trap
proceedings. In the trap proceedings, the amount demanded by the accused, accepted by him
were established, leading to investigation of the case, preceded by registration of the crime.
Thus accusing, the respondent has filed a case before the Court concerned seeking
appropriate punishment since the accused/appellant being a public servant, committed the
offences under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act and
Section 201 of I.P.C., after obtaining necessary permission from the authorities concerned.
3. The learned Chief Judicial Magistrate-cum-Additional District Judge by going
through the final report as well as the connected materials, felt the necessity to frame charges
against the accused, since the materials were so sufficient and thus framing, when questioned
the accused, disputed the case, pleading not guilty.
4. In order to make out a case and to send the public servant behind the bar, 12
witnesses have been marched in supported by 21 documents and 20 material objects.
5. The learned trial Judge evaluated the above materials applying the provisions of law
also, which brought to surface that the charges framed against the accused are proved beyond
all reasonable doubt. Thus concluding the accused being a public servant not only demanded
illegal gratification i.e., other than the legal remuneration, but also accepted the same, which
should come within the meaning of criminal misconduct, the learned Judge found the accused
guilty, convicted and sentenced him to undergo one year R.I. and a fine of Rs.500/- in default
to undergo two months R.I. for the offences under Sections 7 and 13(1)(d) r/w 13(2) of the
Act and Section 201 of I.P.C. each, ordering the imprisonment to run concurrently, which are
impugned in this criminal appeal.
6. Facts so essential leading to the final report ending in conviction followed by this
appeal briefly as follows:
(a) In the month of March, the accused/appellant-public servant was working as
Junior Assistant B-3 Section, Taluk Office, Harur. P.W.1-Velliangiri, who
belongs to Kongu Vellalar Community, approached the Taluk Office by
preferring Ex.P1 elsewhere in the month of January 1989 for the issuance of
Community Certificate accompanied with P.W.2 Ulaganathan. Since the
accused/appellant was dealing the file, both of them approached him on
23.3.1989 at about 10.30 a.m. in order to ascertain the position of the file. At
that time, the accused demanded from P.W.1 that he should pay a sum of
Rs.400/-, which includes the amount payable to the higher authorities also, in
order to issue a community certificate. The bargain resulted in a reduction of
Rs.100/- and in this view, at the request of the accused, P.W.1 agreed to pay a
sum of Rs.300/- on 24.3.1989.
(b) P.W.1 not willing to give bribe approached the Vigilance and Anti-
Corruption Department and preferred Ex.P.2 complaint to P.W.12. On receipt
of Ex.P.2, P.W.12 registered a case in Cr.No.1/AC/89 and submitted the
printed F.I.R-Ex.P.21 to the Chief Judicial Magistrate. Thereafter, he sent for
two official witnesses including P.W.3 and they were introduced to P.W.1
explaining the cases, giving the copy of Ex.P.21 to read and understand also.
At the request of P.W.12, P.W.1 handed over 4 Nos. of Rs.50/- currency
notes and 8 Nos. of Rs.10/- currency notes. Thereafter, P.W.12 demonstrated
and explained the Sodium Carbonate Solution Test and its reaction to
Phenolphthalein. The currencies given by P.W.1 were coated with
phenolphthalein powder and handed over to P.W.1 to hand over the same in
turn to the accused, if he demands money as bribe, giving instructions how
P.W.1 should act, thereafter who is to follow P.W.1 etc. The procedure
followed was recorded under Ex.P4.
(c) Thereafter, P.W.1, P.W.3 went to the office of the accused at about 2.30 p.m.
On seeing P.W.1, the accused asked him whether he brought the amount
demanded for which he said ‘yes’. When P.W.1 and Perumal-P.W.3 was
standing, the accused requested P.W.1 to go near the by pass road where he
would come and receive the amount at about 5.45 p.m. P.W.1 informing the
same to P.W.2 and P.W.3 when he went to by pass road, the accused who
followed him, in a motorcycle, took him as a pillion rider and on the way, he
received a sum of Rs.300/-, informing that he can come on the next Monday,
to get the certificate, since the same is ready. The Inspector and other people,
who followed the accused and P.W.1 were unable to apprehend the accused
forthwith.
(d) P.W.12 accompanied by P.W.3 and others went to the house of the accused
on the same day at about 7.30 p.m., and disclosed their identity. The hands of
the accused were subjected to Sodium Carbonate Solution Test, which proved
positive, thereby making it clear that the accused had received the tainted
money from P.W.1. Upon enquiry the accused handed over Rs.272/- out of
which 3 Nos. of Rs.10/- currency notes alone tallied with the currency notes
given by P.W.1, which were recovered under the mahazar Ex.P.5 and they
are M.Os.8, 9 and 10. The shirt worn by the accused as well his hands were
also subjected to Sodium Carbonate Solution Test, which proved positive.
Thus confirming the accused should have received the amount, he was
arrested at about 8.30 p.m. and the procedures adopted so far were
incorporated under Ex.P.5.
(e) As per the statement given by the accused he took the Inspector and other
witnesses to a Petrol Bunk called Sivasakthi & Co. wherefrom 1 No. of
Rs.50/- currency note, 5 Nos. of Rs.10/- currency notes - M.Os.1, 5 to 7, 11
and 12 were recovered under Ex.P.6 since those currency note numbers
tallied with the currency notes given by P.W.1 which was tainted with
phenolphthalein powder. Thereafter, upon identification by the accused, from
Ghouse Mohideen P.W.8, M.O.3 was recovered under Ex.P7. Then upon
identification of Bhaskaran-P.W.9 by the accused, 2 Nos. of Rs.50/- currency
notes and 4 Nos. Rs.10/- currency notes were recovered under Ex.P.8. They
tallied with the currency note numbers given by P.W.1 at the first instance
which was in turn handed over to him after coating phenolphthalein powder
to be handed over to the accused on demand. Thereafter, from the Taluk
office also, connected application and other files were recovered. The
investigation conducted by P.W.12, statements recorded by him, material
objects recovered during the course of the investigation revealed that the
accused should have demanded and received illegal gratification for the
issuance of Community Certificate to P.W.1, which he is not entitled to do so
since the same is prohibited being the amount representing other than the
legal remuneration. Thus satisfying that the accused had committed the
offence under Sections 7, 13(1)(d) r/w 13(2) of the Act and under Section
201, IPC as said at the first instance, final report came to be filed, leading to
trial, ending in conviction, followed by this appeal.
7. Heard the learned counsel Mr.A. Immanuel appearing for the appellant and the
learned Govt. Advocate (Crl. Side), Mr. Hasan Mohamed Jinnah.
8. Mr. A. Immanuel, the learned counsel appearing for the accused/appellant would
submit,
(i) that there is no satisfactory evidence to prove the demand said to have been made
by the accused before accepting the alleged bribe, which was not at all considered
by the learned trial Judge;
(ii) that there is a lot of unexplained contradictory evidence not only regarding the
amount said to have been given by P.W.1, but also about the amounts said to have
been recovered at the instance of the accused from different persons and this being
the position, the trial Court should have held the acceptance of the amount is also
not proved as required;
(iii) that the accused being known to P.W.1 on the date of the alleged incident, he had
received changes alone for Rs.300/- from P.W.1 which will not amount to
acceptance of illegal gratification, not considered by the trial Court;
(iv) that there is no duty or obligation on the part of the accused, to issue Community
Certificate and this being the position, the very basis for the issuance of the
Community Certificate the accused demanded the amount must be incorrect, not
considered by the trial Court;
(v) that the explanation offered by the accused in receiving the amount from P.W.1
should have been accepted, if so, no case is made out either under Section 7 or
under Section 13(1)(d) r/w 13(2) of the Act or under Section 201, IPC.
(vi) that the sanction said to have been granted for prosecution is by an incompetent
person and therefore, taking cognizance of the case itself is the violation of law and
in this view, the benefit should go to the accused; and
(vii) that due to prior enmity or motive, since the accused/appellant had agitated for the
welfare of the staff, a false case came to be foisted against him, not considered by
the trial Court. Elaborating the above points in detail, taking me through the
evidence also and seeking support from some judicial precedent, a strenuous
appeal has been made to release the accused from the clutches of the conviction as
if the accused has not committed any offence or in other words offence has not
been proved beyond all reasonable doubt as mandated under the criminal
jurisprudence.
9. The learned Government Advocate responding to the above submission would
submit that the demand other requirements or ingredients, which are necessary to sustain a
conviction are all made out beyond all reasonable doubt as recorded by the trial Court and
therefore, interference would amount to giving premium to this kind of acts and in this view,
there was a strong plea for confirmation of the conviction and sentence.
10. The accused was working as a public servant is not in dispute. On the date of the
incident, admittedly he was a Junior Assistant. As far as the Junior Assistant is concerned, the
Revenue Divisional Officer is the competent person to remove him from the service and
therefore, if sanction was granted by the R.D.O. or the person who is in that cadre is
sufficient. In this view, Ex.P.16 sanction order was issued by the P.A. (General) to Collector,
which post is in the cadre of R.D.O. The sanction granted under Ex.P.16 was not challenged
by the learned counsel for the accused/appellant on any other grounds except on the ground
that the person granted sanction is incompetent. It seems on the date of granting sanction the
accused has been promoted as Assistant. Therefore, according to the learned counsel for the
appellant the competent authority to remove an Assistant from the service in the Revenue
Department is only the District Revenue Officer and therefore, the order passed by a person
less than the rank of District Revenue Officer should be held incompetent. The fallaciousness
of the above said submission could be seen from the cursory reading of Section 19 of the P.C.
Act.
11. Section 19(2) of the Act reads:
“Where for any reason whatsoever any doubt arises as to whether the previous
sanction as required under sub-section (1) should be given by the Central
Government or the State Government or any other authority, such sanction shall be
given by that Government or authority which would have been competent to
remove the public servant from his office at the time when the offence was alleged
to have been committed.”
thereby showing the position of the accused should be taken into account at the time
when the offence was alleged to have committed not on the date of granting or according
sanction. In this case, the offence said to have been committed by the accused while he was
admittedly working as Junior Assistant i.e., in the month of March 1989. Therefore, the
subsequent promotion if any need not be taken into consideration in view of the above said
provision and in view of the fact that the accused is prosecuted for the offence said to have
been committed by him as Junior Assistant in the B3 Section of the Taluk Office, Harur
District, not in the capacity of the Assistant where he might have worked subsequent to the
incident. When this was pointed out, I find no answer from the learned counsel for the
appellant. The concerned officer, who accorded sanction has been examined as P.W.7. He
would state that the Personal Assistant (General) to the Collector is competent to remove a
Junior Assistant from the post and in that capacity he accorded sanction for prosecution under
Ex.P.16 to prosecute the accused. When he was cross-examined, though his power was
challenged, the same is not substantiated, that too when the section itself is specific that the
position of the accused on the date of the alleged incident alone should be taken into account.
Thus accepting the oral evidence of P.W.7 as well as Ex.P.15, I conclude the sanction
accorded to prosecute the accused is perfectly valid and there is no infirmity or any violation
of the law in taking cognizance of the offence. Further as submitted by the learned counsel
for the respondent, even assuming that there is some error that will not vitiate or invalidate
the entire proceedings and on this account also, acquitting the accused as if he was
prosecuted against the law is an impossibility.
12. The learned Government Advocate further argued that even assuming that there
was some irregularity in obtaining the sanction, conviction slapped upon the accused cannot
be set aside on that ground as envisaged under Section 465 of Criminal Procedure Code. In
support of the above submission, he also invited my attention to the decisions of the Apex
Court in State of Orissa v. Mrutunjaya Panda, 1998 Cri.L.J 782 and Central Bank of
Investigation v. V.K. Sehgal, AIR 1999 SC 3706.
13. In the case involved in the first decision, the High Court intervened and set aside
the conviction only on the ground that there was no valid sanction to prosecute the accused,
which was challenged before the Apex Court. A Constitutional Bench of the Apex Court
considering the scope of Section 465, Cr.P.C. as well as the irregularity alleged in granting
sanction, has ruled that the alleged irregularity alone cannot be the basis to set aside the
conviction. As seen from paragraph-2, it is observed that,
“On perusal of the impugned judgment we find that the High Court’s attention was
not drawn to the provisions of Section 465 of the Code of Criminal Procedure
which expressly lays down, inter alia, that any error or irregularity in any sanction
for the prosecution shall not be a ground for reversing an order of conviction by the
appellate Court unless in the opinion of that Court a failure of justice has in fact
been occasioned thereby.”
thereby showing unless it is shown that irregularity alleged had caused any failure of
justice, setting aside the conviction may not be proper.
14. The same view was reiterated by the Apex Court in the second decision cited
supra, wherein it is held:
“While dealing with the appeal filed against the conviction and sentence of any
offence mentioned in 1947 Act, the legal position is that no such conviction and
sentence shall be altered or reversed merely on the ground of absence of sanction,
much less on the ground of want of competency of the authority who granted the
sanction.”
15. As seen from the cross examination of the sanctioning authority, there was an
attempt on the part of the accused to question his competency, which is proved to be
incorrect in view of my conclusion supra. Further except the argument advanced that in the
absence of a valid sanction, taking cognizance of the offence is invalid, nothing was shown
before me how that caused prejudice or ended in failure of justice, in arriving the just
conclusion. In this view also, it is to be held, as contemplated under Section 465, Cr.P.C. that
neither the conviction nor the sentence passed by the competent Court shall be reversed or
altered by this Court.
16. The submission of the learned counsel for the appellant that in order to sustain a
conviction under Section 7 of the Prevention of Corruption Act, there should be a demand
and for the same in this case, there is no proof at all and in this view, the conviction slapped
upon the accused under Section 7 of the Act is not at all maintainable. By going through the
oral evidence of P.Ws.1 and 2 and the nature of the dependability, I am unable to affix my
seal of approval to the above contention of the learned counsel for the accused. As seen from
the oral evidence of P.Ws.1 and 2, there is no strained relationship between the accused and
these witnesses and even the suggestion thrown appears to be not well founded, having the
power to doubt about the genuineness of the evidence given by P.Ws.1 and 2. Admittedly,
P.W.1 applied for Community Certificate and the same is spoken by Tahsildar as well as
evidenced by the files also. Therefore, ordinarily there would not have been any reason or
motive for P.Ws.1 and 2 to implicate the accused as if he had demanded bribe. P.W.1 has
categorically deposed before the trial Court that on 23.3.1989 when he and P.W.2
Ulaganathan went to the office of the Tahsildar and met the accused, he demanded a sum of
Rs.400/- for the purpose of issuing Community Certificate, which was later reduced to
Rs.300/-. The evidence so given by P.W.1 regarding the demand as seen from the cross-
examination is not at all erased. The fact in the room along with the accused, some other
persons were also present may not be a ground to say, that the accused would not have
demanded the amount. P.W.2 has also testified about the demand made by the accused with
Velliangiri-P.W.1. The evidence so given by P.Ws.1 and 2, in my considered opinion
clinchingly, proves the demand made by the accused and therefore, the submission of the
learned counsel for the accused/appellant placing reliance upon certain decisions that in the
absence of demand, convicting the accused/ appellant may not be legally sound, appears to be
improper. If PWs.1 and 2 have not stated anything about the demand made by the accused,
then the decisions relied on by the learned counsel for the accused/appellant may come to his
aid. In view of the specific evidence available on record, I am constrained to hold that there
was actual demand by the accused for the purpose of issuing Community Certificate, thereby
satisfying the requirement of demand also.
17. Admittedly, the accused was not the competent authority to issue the Community
Certificate though he was dealing with the file as spoken by the witnesses. When the accused
himself is not the competent authority to issue the Community Certificate, it is the
submission of the learned counsel for the accused/appellant that the case of the prosecution is
the accused demanded and accepted a sum of Rs.300/- for the issuance of the Community
Certificate must be false, placing reliance upon a decision of the Apex Court in State v. K.
Narasimhachary, 2006 Cri. L.J. 518, which appears to be well distinguishable. Therefore, on
the basis since the accused himself is not the competent authority to sign the Community
Certificate, the case of the prosecution cannot be thrown out, as if falsely foisted. If a person
applies for a Community Certificate, a file would be opened and that shall be processed by
the concerned clerk including putting up office note. Then only the Tahsildar, who is
competent to issue a certificate, will sign the Community Certificate. In this view, though the
accused was not the actual person, to sign in the Community Certificate; as the competent
person, he was the competent, to process and put up office note for the issuance of the
Community Certificate, not in question. In the case cited by the learned counsel for the
accused/appellant, the accused was only a recommending authority, and not the final
authority. It is also made out as seen from the judgment, the certificate required therein, was
already forwarded and signed by final authority before the alleged demand of bribe, by the
accused. Therefore, it was felt, there would not have been any necessity, for the
recommending authority to demand the amount since the final authority himself had signed
the certificate. Thus considering the facts and circumstances of the case, the Supreme Court
has ruled when the accused is a recommending authority that too when the certificate was
already signed, the case must be a false, which dictum cannot be straight away made
applicable to the case on hand. In the case on hand admittedly on the date of the demand or
on the date of acceptance, the Tahsildar has not signed the certificate. It is also in evidence
that recommendation file was not processed in order to reach the Tahsildar to get the final
order. Therefore, the accused had every chance to demand the amount in order to process the
file, to put up office note then to obtain the signature of the Tahsildar. It is also the evidence
of P.W.1, that the accused demanded the amount not only for him, but also for the higher
authorities. In this view of the matter, only on the ground the accused is not the competent
authority to issue the community certificate, the case proved otherwise against him for the
reasons which I am going to advert infra, setting aside the conviction is an impossibility and
in this view, this defence is also rejected.
18. It is the case of the prosecution, that P.W.1 had agreed to give a sum of Rs.300/- to
the accused. It is the further case of the prosecution, that only a sum of Rs.300/- was handed
over by P.W.1 to P.W.12. But as seen from the examination, even in chief, P.W.12 has stated
that P.W.1 handed over 4 Nos. of Rs.50/- currency notes and 8 Nos. of Rs.10/- currency
notes, totalling a sum of Rs.280/-. P.W.1 has stated that he has handed over 4 Nos. of Rs.50/-
notes and 10 Nos. of Rs.10/- currency notes. Recovery on the basis of the statement given by
the accused also not to the extent of Rs.300/-, which I will advert infra also. Thus there is
some discrepancy regarding the actual amount given by P.W.1 to P.W.12 as well as the
actual amount recovered from the accused or from the persons shown by the accused. Taking
advantage of this fact, the learned counsel for the accused/appellant argued that the above
said inconsistency should falsify the case of the prosecution and therefore, the benefit of
doubt should be given to the accused.
19. By going through the entire evidence, as well as the recovery and the case of the
accused also, I am unable to doubt, about the genesis of the prosecution case only on the
basis of the above discrepancy. The accused was examined under Section 313, Cr.P.C. and at
that time, he has filed a written statement also, wherein he has admitted about the receipt of
Rs.300/- from P.W.1, explaining that he has received that amount, as change for 3 Nos. of
Rs.100/- notes. Though P.W.12 has stated, at the first instance as if a sum of Rs.280/- was
given to him by P.W.1, later on he has asserted throughout, that Velliangiri had given
Rs.300/-, which was coated with phenolphthalein powder, noting the currency numbers etc.,
which is evidenced by the mahazar (Ex.P.4) prepared then and there. For these reasons, the
discrepancy or inconsistency, as the case may be, fails to create any doubt in my mind to
doubt about the genesis of the case and in this view, this defence also deserves to be rejected.
Therefore, we have to see whether the amount of Rs.300/- viz., tainted amount was given by
P.W.1 to the accused, accepted by him as bribe or he received the same as change for 3 Nos.
of Rs.100/- notes.
20. P.W.1 would state that on 24.3.1989 when he along with P.W.2 went to the Taluk
Office at about 2.30 p.m., the accused questioned them whether he brought the amount or not
for which he said ‘yes’. It is the case of P.W.1 at that time P.W.3 was standing near the
Verandah. He has further deposed, at the request of the accused, once again he went to the
office at 5.30 p.m. and at that time, the accused informed him that he should go to by pass
road where the accused will come and receive the amount. He has further deposed as
requested by the accused when he went towards the by pass road, within five minutes, the
accused came in a motorcycle, requested him to take the pillion seat and on the way, the
accused had received a sum of Rs.300/- informing that the certificate is ready and he could
come and receive the same on Monday. This is also supported by the oral evidence of P.W.3
and in a way strengthened by the statement given by the accused while he was examined
under Section 313, Cr.P.C.
21. In the statement filed by the accused, he admits that P.W.1 travelled in his motor
cycle as pillion rider and when he got down from the motor cycle he received a sum of
Rs.300/- as change for 3 Nos. of Rs.100/- notes. The explanation offered by the accused that
when he requested a shop owner for change for Rs.300/-, P.W.1 offered to give change and
therefore, he received the sum of Rs.300/- from PW1 appears to be highly improbable and
unacceptable. There was no necessity, for the accused to get change for 3 Nos. of Rs.100/-
notes, since it is not the case of the accused in the statement that he had purchased some
goods from the shop owner and unable to get a change for Rs.100/-, PW1 came to his help or
something like that. This being the position, the attempted explanation by the accused for 3
Nos. of Rs.100/- notes, he received changes from the accused fails to inspire my confidence
and this explanation is sought for, to explain the acceptance of the illegal gratification. As
accepted by the accused, he had been to Petrol Bunk, grocery shop, ration shop etc. For
Rs.100/- note certainly in the petrol bunk, changes would be available. Therefore in the
ordinary course, there would not have been any necessity, for the accused to get change for 3
Nos. of Rs.100/- notes. Having received the tainted notes from PW1, in order to escape from
the clutches of the law, the explanation is thought of and the same cannot be accepted at any
stretch of imagination. In view of the admitted position that the accused had received a sum
of Rs.300/- (tainted amount), then it is for the accused under what circumstances he came to
be in possession of the said tainted currency notes and in this attempt as said above, he failed.
As spoken by P.W.12 from the persons shown by the accused viz., Petrol Bunk, ration shop,
grocery shop, totally a sum of Rs.280/- viz., MOs.1 to 12 were recovered and their serial
numbers tallied with the currency notes given by P.W.1 to P.W.12, which was coated with
phenolphthalein powder, then handed over to the accused when he demanded after his
finishing his preliminary work for the issuance of Community Certificate. Only Rs.20/- is
missing. When the accused had used Rs.300/- given by P.W.1 for the purchase of petrol, and
other articles, some of the currency notes would have gone to some other hands from the
shop, but the fact remains a sum of Rs.280/- (tainted amount) given by P.W.1 is recovered
only from the person viz., the accused as well as the persons shown by the accused, which
would go to show that the accused having accepted the tainted amount, attempted further to
screen the same also by spending probably in anticipation of some problem, which act should
attract Section 201, IPC also as rightly held by the trial Court.
22. The shirt worn by the accused, his hands were subjected to phenolphthalein test as
spoken by P.W.12 and as recorded by him in the mahazar also, not under challenge, which is
also admitted by the accused when he was examined under Section 313, Cr.P.C. This fact
coupled with the statement given by the accused while he was examined under Section 313,
Cr.P.C. amply proves beyond all reasonable doubt that the accused had accepted the amount
from P.W.1 preceded by demand and the same should be the illegal gratification, attracting
Section 13 of the Prevention of Corruption Act.
23. Section 20 of the Act contemplates certain kind of presumption when a case is
filed for the offence punishable under Section 7 or Section 11 or Clause (a) or Clause (b) of
sub-section (1) of Section 13, if it is proved that the accused has accepted or obtained any
gratification, it should be presumed that he accepted or obtained the gratification as a motive
or reward attracting Section 7 of the Act. In this case, not only on the basis of the acceptance
of the amount by the accused and recovery, but also on the basis of the unassailable evidence,
it is proved beyond all reasonable doubt, that the accused having demanded the amount from
P.W.1 accepted a sum of Rs.300/-. Therefore, on the basis of the presumption contemplated
under Section 20 of the Act also, it should be held that he had committed an offence under
Section 7 of the Act.
24. In the light of the above discussion, as well as viewing the case from all possible
angles, the irresistible conclusion that could be drawn by the Court is, that the accused being
a public servant, violated Sections 7 and 13(1)(d) r/w 13(2) of the Act in addition to Section
201, IPC also, for which he was rightly tried, legally convicted, imposing the minimum
sentence, which does require only confirmation not any modification or setting aside as the
case may be.
In the result, the appeal fails and the same is dismissed confirming the judgment of
conviction and sentence passed in C.C.No.16/1990 on the file of the 1st Addl. District Judge-
cum-Chief Judicial Magistrate, Krishnagiri dated 16.4.1999. The accused was granted bail by
this Court in Cri.M.P.No.3432 of 1999 by order dated 30.4.1999 and therefore he is directed
to surrender before the Court concerned within 15 days from today failing which the trial
Court is directed to take steps to secure the accused to serve out the remaining period of
sentence.
Appeal dismissed.
[2007 (1) T.N.L.R. 252 (Mad)]
MADRAS HIGH COURT
BEFORE:
A.C. ARUMUGAPERUMAL ADITYAN, J.
P. MURUGAN ...Appellant
Versus
STATE ...Respondent
rd
[Criminal Appeal No. 417 of 2000, decided on 3 February, 2007]
Indian Penal Code, 1860—Section 304, Part II and 323—Offence thereunder—
Conviction and sentence—Accused stabbed on the neck of deceased—Prior enmity
existed between the parties—Evidence of witness corroborated by the medical
evidence—As per medical opinion only due to cut injury on the neck the victim had
breathed her last—The injury was found to be on vital region—The nature of injury
was sufficient to cause the death of victim—Hence provision of Section 304, Part II,
IPC attracted—No reason to interfere with judgment of trial Court.
(Paras 10 and 11)
Counsel.—Mr. B. Kumarasamy, for the appellant; Mr. V.R. Balasubramanian,
Additional Public Prosecutor, for the respondent.
JUDGMENT
A.C. ARUMUGAPERUMAL ADITYAN, J.—This appeal has been preferred against the
judgment in S.C.No.99 of 1999 on the file of Court of II Additional Sessions Judge, Erode.
2. There were totally six accused charged under Sections 147, 148, 449, 307, 307r/w
149, 323, 302 and 302 r/w 149, IPC. Out of six accused, A1 and A2 alone were convicted .
A1 was convicted under Section 304(ii), IPC to undergo five years Rigorous Imprisonment
and A2 was convicted under Section 323 and sentenced to pay a fine of Rs.500/-. All the
other accused have been acquitted under the various charges levelled against them under the
Indian Penal Code. A1 is the appellant herein.
3. The short facts of the prosecution case as narrated in the charge-sheet are as follows:
On 10.12.1997 at about 11.00 p.m., near Ammankoil Thottam,
Thottakudyaampalayam, Vempathi Village, Anthiyur , the appellant along with the other co
accused formed themselves into a unlawful assembly with deadly weapon like Suriknife,
sticks, and stones criminally trespassed into the house of Eswari and with a motive to kill
P.W.2 Palanisamy repeatedly attacked him with stick and stone and in the course of the
transaction A1 stabbed Eswari with Suriknife and thus caused instantaneous death to her.
4. The case was taken on file as PRC No.6 of 1998 by the learned Judicial Magistrate,
Bhavani and after furnishing copies under Section 207, Cr.P.C., the learned Magistrate has
committed the case to the Court of Sessions under Section 209, Cr.P.C., since the offence is
triable by the Court of Sessions. The charge under Sections 302, IPC, 148, IPC, 307, IPC,
307 r/w 149, IPC were framed against the appellant/A1 when questioned the accused
pleaded not guility.
5. On the side of the prosecution,P.Ws 1 to 12 were examined. Exs P1 to P21 and
M.Os 1 to 21 were marked.
6. P.W.1 is the complainant since P.W.1 has failed to support the case of the
prosecution, he was treated as hostile witness. He would admit only his signature in the
complaint.
6(a) P.W.2 is the father of the appellant/A1. He was also an injured
witness. He would admit that P.W.1 is the son of the deceased Eswari and
that he knows A2 to A6 also and that A1 is his son and that some four years
before the date of occurrence, the husband of Eswari died and that there was a
long standing enmity between the family of Eswari and his family and that
there was illicit intimacy developed between him and Eswari and he was
cultivating the lands of Eswari to an extent of 2 acres and that A1 has
complained about this to the priest of Pethanasamy temple and to initiate a
compromise he invited him (P.W.2) to his house for a lunch and that he also
went and took lunch. At that time, his relatives talked ill of him by
complaining that he (P.W.2) is having illicit intimacy with a widow.
Thereafter he left the house and began to stay in the house of Eswari and that
on the date of occurrence, Mathaiyan, Manoharan, Mani came to the house of
Eswari some two years five months back talked at about 11.00 p.m., and
criminally intimidated him and Eswari. On the next day, Wednesday at about
11.45 p.m.,, when he and Eswari were lying on two separate cots, he heard
barking of dogs and so he along with P.W.1 with a torch light along with
Eswari came out of the house and saw his son Murugan (A1) standing there
with a Suriknife on his hand. Other accused also carried stick and stones and
A1 picked up quarrel with him. While, he was talking to A1,A3 beat P.W.1
with a stick on the right shoulder, A2 beat P.W.1 on the left side of the head,
accused Manoharan had thrown a stone on the chest of Eswari and when this
was questioned by him (P.W.2) A2 and A3 repeatedly beat him with stick
thereby causing injury on the right hip, left shoulder and on the eye-brow. At
the instigation of A2, A1 stabbed on the neck of Eswar with knife and the
other accused beat him with stick and that he raised alarm . By that time, the
accused ranaway. Thereafter, P.W.1 brought a car along with one Arappan
and Ramasamy and Eswari was found dead on the place of occurrence itself
and he was taken to a private hospital at Anthiyur at about 2.30 a.m., on the
following date and he was treated at the private hospital and afterwards P.W.2
went to Anthiyur Police Station and prepared a complaint and Anthiyur police
sent him (P.W.2) to Government Hospital for treatment. Since Eswari’s dead
body was kept in the Anthiyur Government Hospital, he was taken to Erode
Government Hospital. He has identified M.O.3 is the knife used by A1 for
committing murder of Eswari and M.O.1 is the lungi worn by him at the time
of occurrence and M.O.2 is the towel used by him at the time of occurrence.
He has identified M.O.4 to M.O.10.
6(b) P.W.3 in his evidence would depose that as per the request made by P.W.1,
he along with Ramasamy Gounder went with P.W.1 to Anthiyur Police
Station where P.W.1 gave a complaint to the Inspector of Police.
6(c) P.W.4 has not supported the case of the prosecution. Hence he was treated as
hostile witness. P.W.5 is a Village Administrative Officer of Nagalur Village.
On information, he (P.W.5) went to the place of occurrence on 11.12.1997
where the Inspector of Police was present along with the Sub Inspector of
Police and other constable and that there was a corpse lying down there and
the Inspector of Police prepared an observation mahazar Ex. P2 in his
presence wherein he has signed as a witness and from the place of
occurrence, M.Os.4 and 5 were recovered by the police along with M.Os.6, 7,
8, 9 and 10. M.O.11 is the blood stained earth and M.O.12 is the sample earth
recovered under mahazar by the Inspector of Police in which he and his
assistant Chandrasekaran have signed as a witnesses. Ex. P3 is the
observation mahazar and M.Os.1 and 2 were recovered under Ex. P4 from
the place of occurrence wherein also he has signed as a witness.
6(d) P.W.6 is another Village Administrative Officer who would depose that on
12.12.1997 at about 7.00 a.m., while he was standing along with his men at
Pudumettur bus stop, the Inspector of Police was making an enquiry of A1
who has admitted that he is the son of P.W.2 and the voluntary statement
given by A1 was recorded by him and on the basis of his voluntary
confession statement, knife and other wearing apparals of the accused were
recovered. Ex. P5 is the admissible portion of his confessioon statement.
M.O.13, a slack shirt produced by A1 from the hidden place.M.O.13, M.O.14
and M.O.3 were recovered. Ex. P6 is the recovery mahazar in which he has
signed as a witness.
6(e) P.W.1 is the doctor who had treated P.W.2 on 10.12.1997 at about 11.00
p.m., Ex. P7 is the wound certificate relating to P.W.1. He has found a cut
injury on the left side of the head measuring 6 cm x cm to bone deep, (2) a
contusion measuring 16 cm x 4 cm on the right hand, (3) a contusion on the
right side of his back measuring 10 cm x 3 cm and another contusion
measuring 10 cm x 3 cm on the left side of his back. He has also examined
P.W.2 for the injury, he had sustained and issued Ex. P8 wound certificate.
As per Ex. P8 wound certificate, P.W.2 is said to have been sustained injury
on the fore head which was measuring 1 cm with sutures; (2) there was a
contusion on the right eye lids; (3) another sutured wound on the right check
measuring 6 cm; (4) there was a swelling on the tip of the nose; (5) blood
oozing out from his left nostril; (6) contusion on the right buttocks; (7) there
was a contusion measuring 8 cm x 3 cm on the left leg. (8) There was a
swelling all over the right check.
6(f) P.W.7 has also conducted post-mortem on the corpse of Eswari on
11.12.1997 at about 3.30 p.m., and issued Ex. P11 post-mortem certificate.
The deceased had sustained a sharp cut injury on the left side of the nape
measuring 5 cm x cm with 7 cm width. Bone deep sharp cut injury on the left
cheek measuring cm x cm. The doctor has opined that the deceased would
have died due to shock and haemorrhage and due to rupture of main blood
vessels. The doctor has further opined that the said injuries would have
caused with a weapon like M.O.1 knife and also with a weapon like M.O.3
and that she would have died some 12 to 24 hours prior to the post-mortem.
6(g) P.W.8 is the then Head Clerk of the Judicial Magistrate Court, Bhavani who
on receipt of the requisition Ex. P12, from the Inspector of Police , Anthiyur
Police Station had forwarded the material objects connected with this case
with Judicial Magistrate’s letter Ex. P13 for chemical analysis. Ex P14 is the
Anaylist report Ex. P15 and Ex. P16 are serologist’s reports.
6(h) P.W.9 is the head constable of Anthiyur Police Station who had handed over
the corpse of Eswari to the Medical Officer at Government Hospital,
Anthiyur for Post-mortem. After the post-mortem, he had recovered the
wearing apparals of the deceased Eswari under M.O.15 to M.O.17 and
handed the same over to the Inspector of Police with his special report Ex.
P17and handed over the corpse to the relatives.
6(i) P.W.10 is the then Head Constable of Anthiyur Police Station who took
P.W.1 Ravi on 11.12.1997 at 5.30 a.m, to the Government Hospital for
treatment. P.W.11 is the Sub Inspector of Police who has recorded the
complaint preferred by P.W.1 Ravi on 11.12.1997 at about 3.00 a.m., and
registered a case in Cr.No.704/97 under Sections 147, 148, 324, 307 and 302,
IPC Ex. P18 is the First Information Report. He has also recovered blood
stained Banian M.O.18 and blood stained M.O.19 Lungi from P.W.1 Ravi and
sent the same to the Judicial Magistrate’s Court under Form 95.
6(j) P.W.12 is the Investigation Officer in this case who would depose that on
11.12.1997 at about 4.30 p.m., he received Ex. P18 F.I.R in this case and
immediately proceeded to the place of occurrence at 6.00 a.m. and prepared
Ex. P2 mahazar in the presence of P.W.5 and another witness
Chandrasekaran and also had drawn a rough sketch Ex. P20 and has made
arrangements to take photographs of the scence of occurrence. M.O. 20 are
the negatives and M.O.21(series) are the photographs (five photos), he has
recovered M.O.3 to M.O.12 from the place of occurrence under Ex. P3
mahazar in the presence of witnesses. He went to the Government Hospital
and conducted inquest over the corpse of the deceased Eswari in the presence
of P.W.2 and another witness Arumugam between 10.00 a.m., and 1.00 p.m.,
Ex. P21 is the inquest report. He has examined the witnesses and recorded
their statements. He has arrested A1/appellant on 12.12.1997 at about 7.00
a.m., near Pudumettur bus stand at Anthiyur Atthani Road. A1 voluntarily
gave confession, the admissible portion of the same is Ex. P5. On the basis of
the confession statemenet A1, took the investigation officier along with the
witnesses to a garden belonging to Rajappan at Brammdesam Village and
took out M.O.3, M.O.13 and M.O.14 from the thatched coconut roof of small
shed under Ex. P6 mahazar in the presence of P.W.6 and another witness
Appukutty. On the same date at about 11.00 a.m., he has also arrested other
accused. After getting post-mortem report and he gave a requisition to Ex.
P12 to the Judicial Magistrate to send the material objects connected with this
case for chemical analysis then after completing investigation, he has filed a
charge-sheet on 28.1.1998.
7. When incriminating circumstances were put to the accused, he denied his complicity
with the crime. The learned trial Judge, after going through the available evidence both oral
and documentary, has come to a conclusion that offence under Section 304 (ii), IPC has been
made out beyond any reasonable doubt against A1 and an offence under Section 323, IPC has
been made out against A2 and convicted A1 and sentenced to undergo five years rigorous
imprisonment and convicted A2 and imposed a fine of Rs 250/- with default sentence and the
learned Judge has acquitted the other accused giving benefit of doubt.
8. Now the point for consideration in this appeal is whether the conviction and
sentence against the A1 under Section 304(ii), IPC is liable to be set aside for the reasons
stated in the memorandum of appeal?
9. Heard Mr.B.Kumarasamy, learned counsel appearing for the appellant and
Mr.V.R.Balasubramanian, learned Additional Public Prosecutor for the respondent and
considered their respective submissions.
10. The Point:
The learned counsel appearing for the appellant would contend that only on the
evidence of P.W.2, the learned trial Judge has convicted the accused under Section 304(ii),
IPC but the learned trial Judge has failed to consider his evidence in the cross-examination
to the effect that some unknown persons had made an attempt to stab him, fell on the victim
Eswari who intervened in between that person and him (P.W.2) at the time of occurrence.
But an important thing to be noted in this case is P.W.2 was chief examined on 3.4.2000. On
that date, P.W.2 has categorically deposed in the chief examination that A1 has stabbed on
the neck of Eswari but when he was recalled on 11.4.2000 and further cross-examined only,
he would go away from the depositions made in the chief examination on 3.4.2000 to the
effect that some unknown person had inflicted the injury. P.W.2 is an injured witness. After
the occurrence, he was taken to the Government Hospital for treatment on 11.12.1997 at
about 2.30 p.m., where he has stated before the Doctor P.W.7 who had examined him for
the injuries , he had sustained to the effect that on 10.12.1997 at about 11.00 p.m., he was
assaulted by known persons with stones and sticks. In the chief examination P.W.2 has
identified M.O.3 as the knife used by A1 to commit murder of Eswari.
11. Admittedly, A1 is the son of P.W.2 and there was enmity between P.W.2 and A1 in
respect of the illegal intimacy prevailing over Eswari and P.W.2. This motive aspect has been
spoken to by P.W.2 himself in the chief examination to the effect that when he went to his
house to take his lunch with his wife A1 has abused him for having illegal conduct with a
widow and hence immediately left the home and began to live with Eswari, the victim in this
case. So the contention of the learned counsel appearing for the appellant/A1 that the
evidence of P.W.2 cannot be believed, holds no water. The evidence of P.W.1 has been
corroborated by the medical evidence of P.W.7 the doctor who had conducted post-mortem
on the corpse of Eswari and has issued Ex. P11 post-mortem certificate which shows that
only due to cut injury No.1 on the neck, the victim had breathed her last. The injury was on
the vital region. Even though, there was only one stab inflicted by A1 on the victim, the
nature of the injury is sufficient to cause the death of the victim which attracts an offence
under Section 304 (ii), IPC as correctly held by the learned trial Judge. I am of the considered
view that I do not find any other reason to interfere with the well considered judgment of the
learned trial Judge in S.C.No.99 of 1999 regarding the conviction of A1 under Section 304
(ii), IPC which do not warrant any interference form this Court. Point is answered
accordingly.
12. In fine, the appeal fails and the same is dismissed confirming the judgment in
S.C.No.99 of 1999 on the file of the Court of Second Additiional Sessions Judge, Erode. The
trial Court is directed to secure the accused by issuing Non Bailable Warrant and to send him
to prison to undergo the unexpended portion of sentence.
Appeal dismissed.
[2007 (1) T.N.L.R. 259 (Mad)]
MADRAS HIGH COURT
BEFORE:
A.C. ARUMUGAPERUMAL ADITYAN, J.
M/S I.V.P. LTD., CHENNAI ...Appellant
Versus
M/S. B.P. REFINERIES, MUMBAI AND OTHERS ....Respondents
[Criminal Appeal No. 495, decided on 3rd February, 2007.]
Negotiable Instruments Act, 1881—Section 138—Dishonour of cheuqe—
Acquittal of accused—legality of—Cheque issued for existing debt due to complainant
company—On presentation bank bounced it on the ground of insufficient fund in the
account of the drawer—Accused was acquitted because complainant was not authorized
person to file complaint—Records showing that power of attorney has been executed by
the Managing Director of the company which was attested by a notary public, and the
person who preferred a complaint was an authorized person—Order of acquittal of
accused on such ground illegal—Accused liable to be convicted under Section 138 of the
Act.
(Paras 9, 10 and 11)
Case law.—(2002) 1 SCC 234; (1998) 1 MWN (Cri) 202; 1999(III) CTC 764; AIR
1992 Mad 346;—referred.
Counsel.—Mr. N. Anand Venkatesh for M/s. Sai Raaj Associates, for the appellant;
Mr. R. Vijayaraghavan, for the respondents.
JUDGMENT
A.C. ARUMUGAPERUMAL ADITYAN, J.—This appeal has been preferred against the
judgment of acquittal in C.C.No.4030 of 1997 on the file of the Court of XIV Metropolitan
Magistrate, Egmore, Chennai. The complainant is the appellant herein. The complaint was
preferred under Section 200, Cr.P.C for an offence under Section 138 of Negotiable
Instruments Act against the accused.
2. The facts in brief in the complaint is that A1 has given a cheque for Rs.18,01,063
dated 1.3.1997 for the existing debt due to the complainant company which on representation
to the bank was bounced on the ground that there was insufficient fund in the account of the
drawer.
3. After recording the sworn statement, the complaint was taken on file by the learned
Judicial Magistrate and summons were issued to the accused. On receipt of the summons,
the accused appeared before the Court and copies were furnished to the accused under
Section 207, Cr.P.C. And when the offence charged against the accused was explained to him
and when questioned the accused pleaded not guilty.
4. On the side of the complainant two witnesses were examined and Exs. P1 to P11
were marked. When incriminating circumstances were put to the accused under Section 313,
Cr.P.C. the accused denied their complicity with the crime. Neither the accused have
examined any witness nor produced any document.
5. P.W.1 in his evidence would contend that he is an authorised agent of the plaintiff’s
company and Ex. P1 is the power-of-attorney issued by the company and that the second
accused is the partner of the first accused company and that the accused in connection with
the purchase of Palmoil, owe Rs. 20,43,154 /- to the complainant. Ex. P2 is the invoice for
the supply of Palmoil to the accused and Ex. P3 is the debit note prepared on the basis of Ex.
P2. Ex. P4 is the statement of account to show the amount due from the accused to the
complainant. On 1.3.1997, the accused gave a cheque for Rs.18,01,063/- in partial discharge
of the amount due to the complainant. When the said cheque was presented in the bank of
India, Thousand Lights Branch on 5.4.1997, the said cheque was bounced on 24.4.1997 with
an endorsement referred to “drawer”. Ex. P6 is the returned memo and Ex. P7 is the debit
advice. Ex. P8 is the notice sent to the accused. Ex. P9 and Ex. P10 are the
acknowledgements dated 10.5.1997. Hence the complaint.
6. P.W.2 is the Senior Manager of the Indian Bank Nepean Sea Road Branch, Mumbai.
He would depose that the first accused Company is having a Current Account No.669. When
Ex. P5 cheque came to his Bank for collection on 11.4.1979 which was returned with an
endorsement as “referred to Drawer”, since there was no sufficient funds available in the
account of the drawer. Ex. P6 is the cheque returned memo and the copy of the statement of
account is Ex. P11.
7. When incriminating circumstances were put to the accused, they denied their
complicity with the crime. The learned trial Judge, after going through the evidence has come
to a conclusion that the complaint was not preferred by the proper and authorised person of
the complainant company and the learned Judge has further held that the provisions
contemplated under Sections 138 (a)(b)(c) of the Negotiable Instruments Act have also not
been proved beyond any reasonable doubt to warrant conviction under Section 138 of
Negotiable Instruments Act. A reading of the judgment of the trial Court will clearly go to
show that at Page 4, the learned trial Judge has come to a definite conclusion that the
provisions contemplated under Sections 138 (a)(b)(c) have been followed and prima facie,
there is case made out by the complainant under the above provisions of law. But
subsequently, at paragraphp 5, the learned Judge has come to a conclusion that the
complainant has not fully established the guilt of the accused beyond any reasonable doubt
under Section 138 (a)(b)(c) of the Negotiable Instruments Act and the learned Judge has
further observed at paragragh 5 of the judgment that as per Section 142(1) of the Negotiable
Instruments Act, a payee or the holder in due course of the cheque is entitled to file the
complaint. But a person has filed the complaint on behalf of the company must have a valid
Power of Attorney Deed to represent the company. The learned Judge has rejected Ex. P1
Power of Attorney on a trivial ground that it was not drafted as per Section 85 of the Indian
Evidence Act which runs as follows:
“The Court shall presume that every document purporting to be a power of
attorney, and to have been executed before, and authenticated by a Notary Public,
or any Civil Judge, Magistrate, Indian Counsul or Vice Counsul or representative
of the Central Government, was so executed and authenticated.”
8. A perusal of Ex. P1 power-of-attorney will go to show that it was executed and
sanctioned before the Notary of Bombay. Both the Managing Director as well as Assistant
Company Secretary have authorised the complainant Mahadevn to file the complaint and to
take up appropriate legal proceedings in matters relating to the complainant company. At one
place the date 30th day of Septemeber alone has been corrected with whitener and the said
correction has been attested by the Executor. The Managing Director, who has authorised
Mahadevan, the complainant to represent the Company has also signed in Ex. P1 power-of-
attorney. Under such circumstances, the findings of the learned trial Judge cannot be
sustained for a moment.
9. Ex. P4 is the statement of account produced by the complainant to show that under
the transaction between the plaintiff’s company and the accused company, a sum of
Rs.20,43,154 was the amount due as on 31.1.1997 to the plaintiff company from the accused
and the cheque was issued by the accused for Rs.18,01,063/- on 1.3.1997 under Ex. P5. The
complainant has also produced invoice and debit note for the transaction under Exs. P2 and
P3. The accused have not taken any plea that Ex. P5 cheque is a forged one. On the other
hand, the accused have not chosen to send any reply to the notice sent by the complainant
under Ex. P8. Exs. P9 and P10 are the acknowledgements for the accused having received
those notices. The evidence of P.W.2 will go to show that Ex. P5 cheque was bounced on
presentation with the Bank. Ex. P6 is the returned memo and Ex. P7 is the debit invoice. So
all the ingredients under Section 138 (a)(b)(c) have been fulfilled by the complainant to
prefer a complaint against the accused under Section 138 of the Negotiable Instruments Act.
So I am of the considered view that the complainant has proved the guilt of the accused under
Section 138 of the Negotiable Instruments Act.
10. The learned counsel appearing for the appellant relying on a decision reported in
(2002) 1 Supreme Court Cases 234) M.M.T.C. Ltd. v. Medical Chemicals and Pharma (P)
Ltd., and contended that a complaint preferred by a company is maintainable under Section
138 of the Negotiable Instruments Act, even by an employee of the Company without
necessary authorisation. The exact observation by the Apex Court runs as follows:
“This Court has, as far back as, in the case of Vishwa Mitter v. O.P.Poddar, held
that it is clear that anyone can set the criminal law in motion by filing a complaint
of facts constituting an offence before a Magistrate entitled to take cognizance. It
has been held that no Court can decline to take cognizance on the sole ground that
the complainant was not competent to file the complaint. It has been held that if
any special statute prescribed offences and makes any special provision for taking
cognizance of such offences under the statue, then the complainant requesting the
Magistrate to take cognizance of the offence must satisfy the eligibility criterion
prescribed by the statue. In the present case, the only eligibility criteria prescribed
by Section 142 is that the complainant must be by the payee or the holder in due
course. This criteria satisfied as the complaint is in the name and on behalf of the
appellant Company. In the case of Associated Cement Co., Ltd. v. Keshvanand, it
has been held by this Court that the complainant has to be a corporeal person who
is capable of making a physical appearance in the Court.It has been held that if a
complaint is made in the name of an incorporeal person (like a company or
corporation) it is necessary that a natural person represents such juristic person in
the Court. It is held that the Court looks upon the natural person to be the
complainant for all practical purposes. It is held that when the complainant is a
body corporate it is the de jure complainant, and it must necessarily associate a
human being as de facto complainant to represent the former in Court proceedings.
It has further been held that no Magistrate shall insist that the particular person,
whose statement was taken on oath at the first instance, alone can continue to
represent the company till the end of the proceedings. It has been held that there
my be occasions when different persons can represent the company. It has been
held that it is open to the de jure complainant company to seek permission of the
Court for sending any other person to represent the company in the Court. Thus,
even presuming, that initially there was no authority, still the company can, at any
stage, rectify that defect. At a subsequent stage the company can send a person
who is competent to represent the company. The complaints could thus not have
been quashed on this ground”.
So in this case also, the complainant company a de jure person has been properly
represented by P.W.1, the de facto complainant by a valid power of attorney under Ex. P1.
The learned counsel appearing for the appellant has relied on P.M. Vijayakumar v. M/s
Monara Chits (P) Ltd., Chennai, 1998 (1) MWN (Cri) 202, and M. Lakshmi v. M/s
Shanmuga Priya Textiles (P) Ltd., Thungavi,Udumalpet, 1999 (III) CTC 764. In the earlier
ratio [1998 (1) MWN (Cri) 202] there was no document produced to show that the
complainant who had preferred the complaint on behalf of the company is an authorised
person to represent the company only on that ground the private complaint was quashed
under Section 434, Cr.P.C. Later ratio [1999(III) CTC 764], the complaint was quashed on
the ground that there was no proper power of attorney in favour of a person who had
preferred the complaint by the Managing Director of the Company. Only on that ground the
complaint was quashed. But in the present case on hand, the above dictums will not be
applicable on facts because here, Ex. P1 power-of-attorney has been executed by the
Managing Director of the company which was also attested by a notary public and the person
who preferred a complaint namely Mahadevan is also an employee of the said Company.
11. The learned counsel appearing for the accused relying on Kadarkarai Reddiar v.
Arumuga Nadar, AIR 1992 Mad 346, and contended that Ex. P1 is not a valid document.
The whole validity of Ex. P1 has been discussed by me in the earlier paragraphs in this
judgment. The facts in the above case relied on by the learned counsel for the accused will
not be applicable to the present case because in the said case, a promissory note, an
incholate document under Section 20 of Negotiable Instruments Act was relied on by the
plaintiff in that case, but that is not the case on hand. Here, there is a valid authorisation
under Ex. P1 power-of-attorney in favour of the complainant to prefer a complaint. Hence I
hold on the point that the judgment of the trial Court is perverse and against the provisions of
law which necessitates this Court, to interfere and set aside the same. Point is answered
accordingly.
12. In fine, the appeal is allowed and the judgment in C.C.No.4030 of 1997 on the file
XIV Metropolitan Magistrate, Egmore, Chennai is hereby set aside and the accused are
convicted under Section 138 of Negotiable Instruments Act and sentenced to undergo one
year rigorous imprisonment and a fine of Rs.36,02,126/- (Rupees Thirty-six lakhs two
thousand one hundred and twenty-six—Twice the cheque amount) only in default to undergo
three months rigorous imprisonment. The accused is not available to receive the sentence.
The trial Court is directed to issue Non-Bailable Warrant to secure the accused to undergo the
sentence.
Appeal allowed.
[2007 (1) T.N.L.R. 264 (Mad)]
MADRAS HIGH COURT
BEFORE:
R. REGUPATHI, J.
SRI VALSA AGENCY & OTHERS …Petitioners
Versus
K. BALAKRISHNAN ...Respondent
[Cri. O.P. No. 4234 of 2006 and Cri. M.P. Nos. 1065 and 2672 of 2006, decided on 12th
December, 2006]
(A) Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—
”Drawer’s signature differs and account closed” —Proceedings against—Allegation
that the account has been closed long prior to the issuance of the cheque—Matter of
evidence—To be agitated only during the course of trial—Signature may differ from
time to time and there may be some improvement or shortage in the signature—To be
looked into by comparing the same with the available admitted signatures of the person
concerned—Matter to be decided only during the course of trial—No merit warranting
interference. (Para 17)
(B) Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—
Proceedings under—Person was not a partner on the date of the issuance of cheque—
Resigned on 21.5.2005 whereas cheque was issued on 17.8.2005—No partnership deed
on record to show that person was also a partner of the firm on the date of issuance of
the cheque—No offence made out—Proceedings quashed.
(Paras 15 and 16)
Case law.—2001(3) SCC 609; 2005 Cri. LJ 1237; 2002(7) SCC 541; 2004(4) Cri. LJ
3096; 2003 Cri. LJ 3292; 2006(2) MLJ (Cri) 1152; 2005(8) SCC 89; 2003 Cri. LJ 4373;
2004(7) SCC 15; 2005(3) CTC 380; 2002 (10) SCC 249.
Counsel.—Mr. G. Karthikeyan, for the petitioners; Mr. S. Sathiachandran, for the
respondent.
JUDGMENT
R. REGUPATHI, J.—The second and third petitioners who are partners of the first
petitioner firm are accused for an offence punishable under Section 138 of the Negotiable
Instruments Act in C.C. No. 327 of 2005 on the file of the learned Judicial Magistrate,
Avinashi.
2. The allegation in the complaint is that the petitioners have borrowed a sum of Rs.
9,50,000/- on 7.8.2005 and issued a cheque for repayment of the same on 17.8.2005. The
cheque was dishonoured on the next day as “drawer’s signature differs and account closed”.
The complainant preferred the present complaint after following the necessary formalities.
3. Learned counsel appearing for the petitioners submit that the account of the first
accused firm was closed on 30.6.2005 and a specific complaint has been made to the bank
stating that the particular cheque in question was found missing and the cheque was not
issued to any one. It is the claim of the petitioners that no such transaction as alleged in the
complaint took place and the cheque in question has not been issued by the second petitioner.
It has been further claimed that the second petitioner is not a partner of the firm, as he has
resigned as early as on 21.5.2005. Even on the face of the allegation and averments made in
the complaint, no specific allegation has been made against the second petitioner. In such
circumstances, sought to quash the proceedings.
4. Learned counsel appearing for the petitioners relied on a judgment reported in 2001
(3) SCC 609 (Shri Ishar Alloy Steels Ltd. v. Jayaswals Neco Limited), wherein the following
passage has been relied:
“6…….To achieve the objective of the Act, the Legislature in its wisdom thought
it proper to make provision in the Act for conferring such privileges to the
mercantile instruments contemplated under it and provide special procedure in case
the obligation under the instrument was not discharged. It has always to be kept in
mind that Section 138 of the Act creates an offence and the law relating to the
penal provisions has to be interpreted strictly so that no one can ingeniously or
insidiously or guilefully or strategically be prosecuted.”
5. Reliance was also placed on the judgment reported in 2005 Cri. LJ 1237
(Ramachandran v. K. Dineshan and another)
“The basic principle of law is that any change in a written instrument which
changes the legal identity or business character of the instrument, either in its terms
or in the legal relation of the parties to it, is a material alteration and such a change
invalidates the instrument against the person not consenting to the change. This
principle of law is essential to the integrity and sanctity of contracts. By alteration,
the identity of the instrument is destroyed. So, the effect of making a material
alteration on a negotiable instrument without the consent of the party bound under
it is exactly the same as that cancelling the instrument.”
6. A case reported in 2002(7) SCC 541 (Vinod Tanna and another v. Zaheer Siddiqui
and others) has been relied on to substantiate that an offence will not be made out, if the
signature is incomplete.
7. By relying on a judgment reported in 2004(4) Cri. LJ 3096 (P.N. Salim v. P.J.
Thomas and another) the learned counsel appearing for the petitioners submit that at the time
when he has closed the account, all the unused cheques have been returned to the bank and
further, a specific mention has been made about the missing of the present cheque and in
such circumstances, an offence under section may not be made out.
8. By relying on the judgment reported in 2003 Cri. LJ 3292 (Urban Co-op. Credit
Society v. State of Gujarat and another) it has been submitted that when an account has been
closed long prior to the transaction, it should be presumed that there is no account at all in the
name of the petitioners and in such circumstances, as the initial requirement is not satisfied,
an offence punishable under Section 138 is not made out.
9. By relying on a judgment reported in 2006(2) MLJ (Cri) 1152 (Sabitha Ramamurthy
and another v. R.B.S. Channabasavaradhya) it is submitted that on a perusal of the
complaint, there is no allegation with regard to the second petitioner as to how he is
responsible for the offence and the role played by him has not been narrated in detail, simply
it has been stated that he is a partner.
10. Reliance has been placed on the judgment reported in 2005(8) SCC 89 (S.M.S.
Pharmaceuticals Limited v. Neeta Bhalla and another) wherein it has been held as follows:
“19…….(a) It is necessary to specifically aver in a complaint under Section 141
that at the time the offence was committed, the person accused was in charge of
and responsible for the conduct of business of the company. This averment is an
essential requirement of Section 141 and has to be made in a complaint. Without
this averment being made in a complaint, the requirements of Section 141 cannot
be said to be satisfied.”
11. A case reported in 2003 Crl. LJ 4373 (Sulochana and others v. Kulasekaran) has
been relied on to substantiate that the deed of the partnership was not produced before the
Court in spite of specific denial in the reply that the second petitioner is not a partner of the
firm on the date of issuance of the cheque. To substantiate the same point, the learned
counsel for the petitioner relied on the judgment reported in 2004(7) SCC 15(Monaben
Ketanbhai Shah and another v. State of Gujarat and others).
12. Per contra the learned counsel for the respondent relied on a judgment reported in
2005(3) CTC 380 (S.V. Muzumdar and others v. Gujarat State Fertilizers Company, Ltd. and
another), which reads as follows:
“Section 141 covers three types of persons viz., (a) Company who committed
offence, (b) Everyone who was in charge of and was responsible for business of
company, (c) Any other person who is director or manager or secretary or officer
of company with whose connivance or due to whose neglect company has
committed offence—Section 141(1) enables accused to prove his innocence by
discharging burden which lies on him. Such matters can be decided only on trial
and petition to drop proceedings cannot be maintained.”
13. A case reported in 2002 (10) SCC 249 [S.A. Nanjundeswara v. Varlak Agrotech
(P) Limited], was also relied on, wherein it has been held as follows:
“Quashing of proceedings in exercise of power under Section 482, Cr.P.C.—Held,
would be justified only if High Court comes to the conclusion that statements made
in the complaint, even taken at face value, do not make out any offence—On facts
held, High Court erred in quashing proceedings against respondent-accused.”
14. I have heard the submissions made by the counsel and perused the materials
available on record.
15. It has been mentioned in Para-1 of the complaint as follows “the second and third
accused are husband and wife”-They are complainant’s friend and doing day to day affairs of
the firm”. Apart from this, there is no specific allegations and averments against the second
petitioner. It is the case of the second petitioner that he was not a partner on the date of the
issuance of the cheque and he has resigned on 21.5.2005 itself. In such circumstances, the
complainant would have filed a partnership deed along with the complaint to show that the
second petitioner is also a partner of the firm on the date of issuance of the cheque. No other
materials have been furnished in this regard. Strangely the drawer of the cheque is also not
mentioned. However, it is admitted that the 3rd petitioner, drawer of the cheque. Civil
disputes are treated as an offence punishable under Section 138 of the Negotiable Instruments
Act by fiction of law. In such circumstances, the formalities required under law may have to
be strictly followed.
16. It has been repeatedly held by the Apex Court that there must be some specific
averments to attract an offence against a partner or a Director. In the instant case, I do not
find any other materials to implicate the second petitioner in the case. In such circumstances,
the cases cited by the petitioner in this regard is relevant. I am of the view that the offence is
not made out against the second petitioner. Therefore, the proceedings against the second
accused alone is quashed.
17. In so far as the 3rd petitioner is concerned, though it has been claimed that the
account has been closed long prior to the issuance of the cheque and the signature of the
cheque does not tally, they are all matters for evidence. As it has been disputed by the parties,
the same may have to be agitated only during the course of the trial. It has been held by the
Apex Court that an account holder can be proceeded with even though the account is closed.
In the instant case the cheque has been returned with an endorsement “drawer’s signature
differ”. The judgments cited by the learned counsel for the petitioners deal with material
alterations. Signature of a person may differ from time to time and there may be some
improvement or shortage in the signature. This may have to be looked into by comparing the
same with the available admitted signatures of the person concerned. In such circumstances,
it is purely a question of fact and the same may have to be decided only during the course of
trial. Therefore, I do not find any merit in the petition to quash the proceedings against the 3 rd
petitioner as the 3rd petitioner is the partner of the first petitioner firm. Learned Magistrate
may proceed against the first and third petitioner after deleting the second petitioner. The
petition is ordered accordingly. Consequently, connected Cri. M.Ps. are closed.
Ordered accordingly.
[2007 (1) T.N.L.R. 269 (Mad)]
MADRAS HIGH COURT
BEFORE:
K.N. BASHA, J.
MUKANDHAND BOTHRA ...Appellant
Versus
T. JAYALAKSHMI ...Respondent
rd
[Criminal Appeal No. 169 of 1998, decided on 23 March, 2006]
(A) Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—
Complaint—Cheque returned by bank unpaid on presentation on the ground of
“insufficient funds”—Complainant issued legal notice—Accused not replied to such
notice—Legally enforceable liability on the part of accused to the complainant
established—Accused issued the cheque knowing fully well that no sufficient funds were
standing to the credit of her account and further failed to settle the amount towards
dishonour of cheque—Therefore, accused committed an offence punishable under
Section 138 of the Act—Order of acquittal held illegal and liable to set aside.
(Paras 18, 19 and 20)
(B) Negotiable Instruments Act, 1881—Section 141—Dishonour of cheque—
Responsibility for the conduct of company—Every person who at the time of offence
was committed was in charge of, and responsible to the company for conduct of
business of company, shall be liable to be proceeded against and punished accordingly.
(Para 17)
Case law.—(2000) 1 SCC 1; (1994) 1 LW (Cri) 262; (1995) 1 LW (Cri) 132; 1992 (2)
Crimes 11—referred.
Counsel.—Mr. N. Chandrasekaran, for the appellant; Mr. N. Doraisamy, for the
respondent.
JUDGMENT
K.N. BASHA, J.—This appeal is preferred by the complainant challenging the order of
acquittal passed by the learned VIII Metropolitan Magistrate, George Town, Chennai in
C.C.No. 1699 of 1996 dated 06.08.1997 acquitting the accused of the offence under Section
138 of Negotiable Instruments Act.
2. The case of the complainant is that the accused had borrowed a hand loan of Rs.
5,00,000/- on 06.04.1995 and executed five pronotes for Rs. 1,00,000/- each on the same
date. The complainant marked Ex.P1, pro note in this case. It is further pointed out by the
complainant that in order to discharge the above said dues, the accused had paid a part of the
amount by a cheque bearing No. 123158 dated 12.02.1996 for an amount of Rs. 1,00,000/-
drawn on Vysya Bank Limited, Park Road, Erode in favour of the complainant and it is stated
by the complainant that the accused had made an oral promise to the complainant that
necessary arrangements were made to honour the above cheque at the time of presentation.
The cheque is marked as Ex. P2.
3. The complainant has examined himself as P.W.1 and stated that, believing the
representation of the accused, he had presented the above said cheque Ex.P2 to his banker
viz., The Karnataka Bank Limited on 12.02.1996 and the same was returned as unpaid on the
ground of “insufficient funds”. The bank intimations Exs. P3 and P4 were received by the
complainant on 19.02.1996. thereafter, the complainant issued a legal notice dated
26.02.1996 calling upon the accused to discharge the entire amount towards the dishonoured
cheque within 15 days from the date of receipt of the notice. The said legal notice is marked
as Ex.P5. The complainant also stated that he had sent the legal notice under Certificate of
Posting and also through registered post. The complainant marked Ex.P6 to prove that the
legal notice, Ex.P5 was sent through Certificate of Posting. It is also stated by the
complainant that the notice was received by the accused on 29.02.1996. The postal
acknowledgement is marked as Ex.P.7. The complainant has also produced a statement of
account under Ex.P.8. The complainant further submitted that in spite of receiving the notice,
the accused failed to settle the amount till the date of filing of the complaint. The
complainant stated that the accused had issued the cheque, Ex.P.2 knowing fully well that no
sufficient funds were standing to the credit of her account and she further failed to settle the
amount towards dishonoured cheuqe till the date of filing of the complaint and thereby, the
accused has committed an offence punishable under Section 138 of Negotiable Instruments
Act.
4. The complainant in order to prove his case examined himself as P.W.1 and also
examined P.W.2, Manager of Vysya Bank Limited, Erode to speak about the return of the
cheque on the ground of “insufficient funds”. The complainant filed Exs. P.1 to P.8.
5. When the accused was questioned under Section 313, Cr.P.C. in respect of the
incriminating materials made appearing against her through the evidence adduced by the
complainant, the accused has come forward with a version of total denial.
6. The learned Magistrate, on consideration of the entire evidence adduced by the
complainant and also on consideration of the documents marked by the complainant, came to
the conclusion that the complainant has not proved his case against the accused and therefore
acquitted the accused of the offence under Section 138 of Negotiable Instruments Act. Being
aggrieved against the order of acquittal, the complainant has come forward with the present
appeal.
7. Mr. N. Chandrasekaran, learned counsel appearing for the appellant contended that
the reason assigned by the learned Magistrate for acquitting the accused is unsustainable in
law. The learned counsel for the appellant further contended that the only ground on which
the learned Magistrate had acquitted the accused is that Ex.P.2, Cheque, was issued by the
accused in the capacity of the President of Sree Amman Trust and non-impleading of the
Trust as one of the accused in this case, renders the complaint as not maintainable, is contrary
to the well settled position of law. The learned counsel also further contended that it is well
settled by the decisions of this Court as well as the Apex Court that a complaint under
Section 138 of the Negotiable Instruments Act against any person, who is responsible and in
charge of the conduct of the affairs of the company or the firm is very well maintainable
without prosecuting the company. The learned counsel appearing for the appellant also
placed reliance on the decision of the Hon’ble Supreme Court of India in Anil Hada v. Indian
Acrylic Ltd. reported in (2000) 1 SCC 1. The learned counsel for the appellant further
contended that the Trial Magistrate has even misread the evidence adduced by the
complainant.
8. Mr. N. Doraisamy, learned counsel for the respondent/accused has contended that
the learned Magistrate has given a reasonable ground for acquitting the accused. It is further
submitted by the learned counsel for the respondent/accused that the learned Trial Magistrate
has rightly placed reliance on the decisions of this Court reported in A. Jaffarullah v. M/s. T.
Stanes & Co. Ltd. reported in (1994) 1 L.W. (Cri) 262 and Suryanarayanan v. M/s. Anchor
Marine Service reported in (1995) 1 L.W. (Cri.) 132. In view of the above said decisions, Mr.
N. Doraisamy, learned counsel for the respondent/accused submitted that the non-impleading
of the Trust as the accused, signed the cheque on behalf of the Trust, is render the complaint
has not maintainable and therefore the entire proceedings are vitiated.
9. I have given my careful consideration to the rival contentions put forward by either
side.
10. A perusal of the impugned order of acquittal passed by the learned Magistrate
shows that the learned Magistrate has chosen to acquit the accused on the sole ground that
Ex.P.2 cheque was issued by the accused in the capacity of President, Sree Amman Trust and
since the complainant has not impleaded the Trust as one of the accused in this case, the
complaint is not maintainable.
11. Learned Magistrate, for giving such a finding as stated above, has placed reliance
on the decisions of this Court reported in A. Jaffarullah v. M/s. T. Stanes & Co.. Ltd. reported
in (1994) 1 L.W. (Cri) 262 and Suryanarayanan v. M/s. Anchor Marine Service reported in
(1995) 1 L.W. (Cri) 132.
12. In the decision reported in 1994 1 L.W. (Cri) 262 (cited supra), the learned single
Judge has observed that in view of two contradictory views expressed by the Apex Court in
one decision that the persons or officers of the company can be separately prosecuted under
Section 1 or 2 of the E.C. Act irrespective of whether the company itself is prosecuted or not,
for the contravention of the order by the company and in another decision that unless there
was prosecution of the company, there can be no prosecution of the Managing Director, the
learned single Judge of this Court opted to place reliance on the later decision of the Apex
Court in U.P. Pollution Control Board v. Modi Distillery, AIR 1988 SC 1123.
13. In the second decision in the case of Suryanarayanan v. M/s. Anchor Marine
Service reported in (1995) 1 L.W.(Cri) 132 a single Judge of this Court has held that,
“The respondent had deliberately omitted to implead the company in the complaint
though Section 141 of the Negotiable Instruments Act emphasizes that the
company also shall be an accused. According to the learned senior counsel for
petitioner, the defect in this case, is a serious legal infirmity in the complaint itself,
and therefore, when the complaint itself has the initial defect, the proceedings
cannot be allowed to continue against the petitioner. It is found that without
impleading the company, the present complaint against the petitioner is not
sustainable. Therefore, when the complaint has the initial defect in its
sustainability, the defect cannot be cured by amending the proceedings. Section
319 of the Code of Criminal Procedure no doubt permits for impleading any other
accused, who was party to the commission of the offence. But, impleading such co-
accused under Section 319 of the Code of Criminal Procedure is not intended for
curing the infirmity in the proceedings but only to bring all the culprits before
Court when their role in the commission of the offence was brought to light only
after the evidence before Court. Such is not position in this case. The proceedings
against the petitioner have to be quashed.”
14. It is relevant to consider that a learned Judge of this Court (M. Karpagavinayagam,
J.) has held in K.S. Subbaraman v. Iyyammal reported in 1999 (2) Crimes 11 that,
“6. As regards the second point, namely, non-inclusion of the Company as the co-
accused’ the trial Court has followed the judgment of this Court rendered in N.
Doraisamy v. Archana Enterprises and that of the Kerala Court in Iqbal v.
Uthaman, and held that when the offence is committed by a Company, either the
company alone, or the person in charge of the business of the Company alone, or
both of them together, can be prosecuted for the offence under Section 138.
7. The judgment rendered by this Court reported in N. Doraisamy case (supra),
interpreting the sections on first principle and following the judgment of the Apex
Court in Sheoratan Agarwal v. State of Madhya Pradesh, while dealing with the
aspect elaborately, concluded that the Managing Directors of the Company can be
prosecuted even without including the Company as a co-accused. The gist of the
proportion given in the decision referred to above is that the prosecution
proceedings against the persons incharge of and responsible to the Company for
the conduct of its business, or the persons, with whose consent or connivance of, or
an act attributable to, or the persons, with whose consent or connivance of, or an
act attributable to, or due to any neglect on their part, the offence had been
committed, are maintainable irrespective of whether the Company is prosecuted or
not. In this decision, Honourable Janarthanam, J. held that the earlier decision
rendered by this Court on this point is contrary to the said view and that the said
proposition of law was not correctly laid down, in the light of the Supreme Court’s
decision reported in A.I.R. 1984 S.C. 1824 (supra), I am in entire agreement with
the view expressed in the said decision.”
15. The Hon’ble Supreme Court of India also held in Anil Hada v. Indian Acrylic Ltd.
reported in (2000) 1 SCC 1 that,
“The offender in Section 138 of the Negotiable Instruments Act, 1881 is the drawer
of the cheque. He alone would have been the offender thereunder if the Act did not
contain other provisions. It is because of Section 141 of the Act that penal liability
under Section 138 is cast on other persons connected with the company.
Three categories of persons are brought within the purview of the penal liability
through the legal fiction envisaged in Section 141. They are (1) the company which
committed the offence, (2) everyone who was incharge of and was responsible for
the business of the company and (3) any other person who is a director or a
manager or a secretary or officer of the company, with whose connivance or due to
whose neglect the company has committed the offence…………The provisions do
not contain a condition that prosecution of the company is sine qua non for
prosecution of the other persons who fall within the second and third categories
mentioned above. No doubt a finding that the offence was committed by the
company is sine qua non for convicting those other persons. But if a company is
not prosecuted due to any legal snag or otherwise, the other prosecuted persons
cannot, on that score alone, escape from the penal liability created through the
legal fiction envisaged in Section 141 of the Act.”
16. It is relevant to consider the provision under Section 141 of Negotiable Instruments
Act in respect of the offence committed by the Companies. Section 141 of the Negotiable
Instruments Act reads as follows:-
“Offences by Companies.—(1) If the person committing an offence under Section
138, is a company, every person, who, at the time the offence was committed, was
in charge of, and was responsible to, the company for the conduct of the business
of the company, as well as the company, shall be liable to be proceeded against and
punished accordingly.”
17. It is relevant to note that the above said provision under Section 141 of the
Negotiable Instruments Act makes it crystal clear that every person, who at the time the
offence was committed was in charge and was responsible for the company for conduct of
the business of the company shall be liable to be proceeded against and punished
accordingly. Therefore, the very provision itself is clear and there is absolutely no ambiguity
in the provision. As such, in a complaint under Section 138 of Negotiable Instruments Act,
even without prosecuting the company or firm, the persons who are all responsible and in
charge for the day to day affairs of the company or firm can very well be prosecuted.
18. A perusal of Ex.P1, pro note said to have been executed by the accused clearly
shows that the accused executed the pro note in her personal capacity though she has signed
the pro note and affixed the seal as Correspondent, Sree Amman Arts and Science College,
Erode. It is also relevant to be noted that the cheque Ex.P2 issued by the accused dated
12.02.1996 bears the signature of the respondent/accused. There is also a seal showing her as
the President of Sree Amman Trust. Therefore, there is no consistency between Ex.P.1, pro
note and Ex.P.2, cheque issued by the respondent/accused. But the undisputed fact remains
that the respondent/accused has signed the cheque as well as the pro note which itself makes
it clear as to the liability of the accused, thus going to show that there is a legally enforceable
liability on the part of the accused to the complainant. It is also relevant to be noted that the
accused has not even replied to the legal notice, Ex.P5 sent by the complainant in spite of
receiving the notice as the complainant has proved the receipt of the notice by the
respondent/accused by marking Ex.P6 proof of Certificate of Positing and also Ex. P7, postal
acknowledgement to show that the accused has received the legal notice, Ex.P5 in this case.
19. Therefore, the reason assigned by the learned Magistrate as stated above is wrong,
both factually and legally. Under such circumstances, this Court is left with no other
alternative except to allow the appeal.
20. Considering the fact that the transaction took place about 10 years back and the
respondent/accused since being a housewife, imposing a fine of Rs. 5,000/- would meet the
ends of justice. The order of acquittal is set aside and this Court is inclined to impose a fine
amount of Rs. 5,000/- (Rupees Five Thousand Only).
21. Before parting with this matter, this Court must place on record the commendable
services rendered by Mr. N. Doraisamy, who appeared in this matter as the legal aid counsel
and produced the authorities and took this Court through the materials available on record.
Appeal allowed.
[2007 (1) T.N.L.R. 275 (Mad)]
MADRAS HIGH COURT
BEFORE:
R. BALASUBRAMANIAN AND M. JEYAPAUL, JJ.
MURTHY AND OTHERS …Appellants
Versus
STATE ...Respondent
[Criminal Appeal Nos. 1395, 1412 and 1439 of 2004, 140, 162, 195, 290 of 2005, 1032 of
2006 and 15 of 2007, decided on 1st February, 2007]
(A) Indian Penal Code, 1860—Sections 148, 341 and 302—Explosive Substances
Act, Section 3—Offence thereunder—Conviction and sentence—Legality of—Accused
persons were member of unlawful assembly and having intercepted the police escort
jeep, threw country bomb and committed the murder of five remand prisoners along
with other accused—Testimony of witnesses corroborated by each other—Plea of alibi
and the burden of proof is very heavy on the accused to establish the defence of alibi—
On facts and circumstances order passed by Court below not illegal—However sentence
for conviction recorded by trial Court under Section 302, IPC shall run concurrently
and not consecutively. (Paras 52 to 63)
(B) Criminal trial—Plea of alibi—Raising of—The strict proof is required for
establishing the plea of alibi and burden of proof is very heavy on the accused to
establish the defence of alibi. (Para 47)
Case law.—1997 SCC (Cri) 333; 1997 SCC (Cri) 591; 1998 SCC(Cri) 207—
referred.
Counsel.—Mr. V. Vibhishnan formalities Mr. K. Balakrishnan, for the appellant in
Cri. A. Nos. 140/2005, Mr. S. Doraisamy, SC for Mr. V. Elangovan for appellants in Cri. A.
Nos. 1439/2004, 162, 195 & 290/2005, 1032/2006 & 15/2007; Mr. K.V. Sridharan for Ms.
Jayasri Baskar for appellants in Cri. A. Nos. 1412/2004 and 1395/2004; Mr. N.R. Elango,
Addl. Public Prosecutor for respondent in all the above appeals and for appellant in Cri. A.
No. 669/2005; Mr. R. Shanmughasundaram, SC for Mr. C.M. Gunasekaran for Mr. V.
Purushothaman, for respondents in Cri. A. No. 669/2005.
JUDGMENT
M. JEYAPAUL, J.—Totally eighteen accused were charged in S.C.No.34 of 1999 on the
file of the First Additional Sessions Judge, Salem.
2. A1 to A18 were charged for offences under Sections 148, 307 read with 149 and
332 read with 149, IPC, and Section 3(1) of the TNPPD Act read with Section 149, IPC, A1
to A6 under Sections 341, IPC and 3 of Explosive Substances Act, A7 to A18 under Section
6 of the Explosive Substances Act, A6 to A11 under Section 332, IPC, A1 to A5, A7 to A10
and A12 to A18 under Section 332 read with 149, IPC, A1 to A10 and A14 under Section
302 read with 34, IPC, A2 to A9 and A11 to A13 and A15 to A18 under Section 302 read
with 149, IPC, A3, A4 and A8 under Section 302 read with 34, IPC, A1, A2, A5 to A7 and
A9 to A18 under Section 302 read with 149, IPC, A5, A7, A15 and A17 under Section 302
read with 34, IPC, A1 to A4, A6, A8 to A14, A16 and A18 under Section 302 read with 149,
IPC, A2, A6 and A18 under Section 302 read with 34, IPC, A1, A3 to A5 and A7 to A17
under Section 302 read with 34, IPC, A11, A12, A13, A16 under Section 302 read with 34
and A1 to A10, A14, A15, A17 and 18 under Section 302 read with 149.
3. The learned Additional Sessions Judge, Salem found A4, A5, A8, A12, A14, A15
and A16 not guilty under any of the aforesaid offences and found A1, A2, A3, A6, A7, A9,
A10, A11, A13, A17 and A18 guilty for offences under Sections 148, 341 and 302, IPC (five
counts) and Section 3 of the Explosives Substances Act and sentenced them each to undergo
one year rigorous imprisonment for offence under Section 148, IPC, one month simple
imprisonment for offence under Section 341, IPC and life imprisonment and to pay fine of
Rs.5000/- each in default to undergo a further period of two years rigorous imprisonment for
offence under Section 302, IPC (five counts) and to undergo one year rigorous imprisonment
for offence under Section 3 of the Explosive Substances Act. The sentence imposed for
offences under Sections 148 and 341, IPC and 3 of the Explosive Substances Act were
ordered to run concurrently, but, the sentence imposed for offence under Section 302, IPC
(five counts) were directed to run consecutively. Fine amount imposed was directed to be
paid as compensation to the heirs of the victims.
4. Aggrieved by the aforesaid judgment, A17 and A18 prefer Criminal Appeal
No.1395 of 2004, A-11 prefers Criminal Appeal No.1412 of 2004, A7 Criminal Appeal
No.1439 of 2004, A1 Criminal Appeal No.140 of 2005, A10 Criminal Appeal No.162 of
2005, A3 Criminal Appeal No.195 of 2005, A13 Criminal Appeal No.290 of 2005, A6
Criminal Appeal No.1032 of 2006 and A9 Criminal Appeal No.15 of 2007. Aggrieved by the
order of acquittal recorded by the Trial Judge as against A4, A5, A8, A12, A14, A15 and
A16, the State has preferred Criminal Appeal No.669 of 2005. The second accused has not
preferred any Criminal Appeal before this Court.
5. On the side of the prosecution, as many as 35 witnesses were examined and 107
documents and 39 Material Objects were marked. On the side of the defence, 13 witnesses
were examined and 17 documents were marked. One K.K. Palanisamy, Additional
Superintendent of Police was examined as Court witness and four documents were marked as
Court Exhibits.
6. The case, in brief, of the prosecution, as unfolded by the witnesses examined on
their side during the course of Trial, is as follows:—
Mahaboob John, PW1, Annadurai, PW2 and Tamilarasan, PW3 accompanied
G.Natarajan, Sub Inspector of Police (since deceased) attached to Mettur Police Station
escorting the remand accused Durai alias Duraian, Murugan, Chinna Jega alias Arokiasamy,
Periya Jega alias Jegadeesan and Raja concerned in Crime No.334 of 1997 on the file of
Mettur Police Station from Salem Sub Jail to the Court of the learned Judicial Magistrate I,
Mettur for the purpose of remand on 29.10.1997. All of them went to Sub Jail, Salem in the
jeep bearing registration number TN 27 G 1013 driven by Tamilarasan, PW3 and having
taken the aforesaid remand accused concerned in Crime No.334 of 1997 on the file of the
Mettur Police Station proceeded via Omalur to Mettur and after the order of remand was
passed by the learned Judicial Magistrate I, Mettur they were returning to Salem via Omalur.
At about 4.45 p.m. on the said day, when the vehicle was crossing the railway gate at
Omalur, there was a speed breaker and as a result of which PW3 had to slow down the
vehicle. At that point of time, one Koola Nagarajan A1, Saravanan A9 and Murugesan A2
along with more than 15 persons came armed with lethal weapons and intercepted the
vehicle. Country bomb was thrown at the vehicle and it exploded in front of the vehicle. The
aforesaid persons having entered into the vehicle attacked the remand accused
indiscriminately. When the deceased Natarajan, Sub Inspector of Police attempted to shoot
the assailants, he was attacked all over his body and the gun he held was also snatched away.
The remand accused were dragged out of the vehicle and were attacked indiscriminately
which resulted in their instantaneous death. A1, Koola Nagarajan, sped away byYamaha
motorcycle. P.Ws.1 to 3 also sustained injury in the occurrence.
7. PW1 saw the first accused speeding away in Yamaha vehicle. Thereafter, he got lift
in a TVS 50 moped and proceeded towards Mettur. He found Mr. Promoth Kumar (PW34),
Superintendent of Police, Salem coming from Mettur. He stopped his vehicle and informed
him of the occurrence. Thereafter, PW34 proceeded to the scene of occurrence along with
PW1 in his vehicle and having found the assailants taking to heels, he along with other police
officials chased them. One of the accused threw a country bomb and as a result of which
PW34 and other police officials sustained injuries. He shot the assailants and also ordered
other police officials to shoot them. As a consequence, three persons were shot dead.
8. R. Chandrasekaran, Head Constable (PW14) who was a part of the team of the
Superintendent of Police apprehended A9. In the said process, he also sustained injuries.
9. The Sub Inspector of Police, Natarajan, since deceased, was retrieved from the scene
of occurrence by one Selvaraj, Police Constable and was admitted to Government Hospital,
Omalur for treatment. Dr. John Gurupatham, PW30, admitted the said Natarajan at about
5.20 p.m. on 29.10.1997, examined him and found him sustained some simple injuries. The
said Natarajan informed PW30 that he was attacked by four known persons and some other
unknown persons at about 4.45 pm on 29.10.1997. The wound certificate issued to Natarajan
is marked as Ex.P96.
10. Esak, PW17 received information about the occurrence and was directed to go to
the scene of occurrence at about 5.00 p.m. on 29.10.1997. He descended at the scene of
occurrence at about 6.45 p.m. on the same day and having retrieved P.Ws.1 to 3 therefrom
admitted them to Government Hospital, Omalur at 7.00 pm on the same day.
Dr.Kalyanaraman, PW27, having admitted P.Ws.1 to 3 for treatment, issued wound
certificates Exs.P69, P70 and P71 classifying the injuries they sustained as simple in nature.
11. Gowthaman (PW32), Sub Inspector of Police attached to Omalur Police Station,
having received information Ex.P99 from Government Hospital, Omalur, proceeded to the
Hospital at about 6.30 p.m. on 29.10.1997 along with Pachamuthu, PW24, Head Constable
attached to the said Police Station. As the Sub Inspector of Police, Natarajan, was not in a
position to script the first information, Pachamathu, PW24 reduced into writing the oral
statement of the said Natarajan who was taking treatment. On the basis of the first
information report, PW59, given by the Sub Inspector of Police, PW32 registered a case in
Crime No.1350 of 1997 for offences under Sections 147, 148, 341, 332, 307 and 302, IPC
and Section 5(b) of the Explosive Substances Act and prepared printed FIR, Ex.P100.
12. As per the instructions of the Deputy Superintendent of Police, the Inspector of
Police Mr.P.Raju, PW35, having received a copy of the FIR at about 6.15 p.m. on the said
day, proceeded to the scene of occurrence. He also registered a case in Crime No.1351 of
1997 for offences under Sections 147, 148, 341, 332 and 307, IPC and Section 5(3) of the
Explosive Substances Act on the basis of the first information report given by the
Superintendent of Police Pramoth Kumar (PW34) in respect of the second limb of the
occurrence where three assailants were shot dead by the police officials. Both FIR and
printed FIR were despatched to the learned Judicial Magistrate, Omalur. R. Chandrasekaran,
PW14, Head Constable produced the accused Saravanan A9 apprehended by him when he
was fleeing and thereafter he was arrested by PW35. Blood stained shirt M.O.25 and blood
stained pants M.O.26 were recovered from him under form 95.
13. The second accused was produced on apprehension by the Head Constable
Anandan, PW13 and a shirt M.O.27 and a lungi M.O.28 were also recovered from him under
form 95.
14. At about 8.15 p.m. on the said day, PW35 proceeded to the scene of occurrence
and prepared observation mahazar in the presence of the Village Administrative Officer. He
also drew rough sketch Ex.P103 reflecting the scene of occurrence. The damaged jeep was
recovered by him at 9.00 p.m. on the said day. Gun powder, M.O.1, Bullets, M.O.5 and
M.O.6, Country Bomb, M.O.7, glass pieces, M.O.8, blood stained mud, M.O.9 and sample
mud, M.O.10 were also recovered from the scene of occurrence in the presence of witnesses.
Siddique Basha, PW31, photographer was engaged to take photographs of the scene of
occurrence. A10, Anbarasan, was arrested at about 10.30 a.m. on 13.10.1997 and on the
basis of the admissible portion in his confession statement, knife was recovered at
Chingalapatti Tank. The apparels worn by A10 were also recovered from him.
15. Dr. Vallinayagam, PW23 conducted post-mortem examination on the dead body of
the remand accused Murugan. He, having found as many as ten cut injuries all over his body,
opined that he died of shock and haemorrhage due to multiple injuries and issued post
mortem certificate Ex.P50. He also conducted post-mortem examination on the dead body of
the remand accused Durai alias Duraian. He found as many as 13 cut injuries and subdural
and subarachnoid haemorrhage. He opined that the said Durai alias Duraian had died due to
shock and haemorrhage on account of multiple injuries in the post mortem certificate Ex.P52.
He also conducted autopsy on the dead body of the remand accused Raja and having found as
many as 16 cut injuries and subdural and subarachnoid haemorrhage on both cerebral
haemorrhage opined that he had died of head injuries in the post-mortem certificate, Ex.P54.
He conducted post-mortem examination on the dead body of Chinna Jaha alias Arokiasamy
and having found as many as 12 cut injuries and subdural and subarachnoid haemorrage over
both cerebral hemisphere, opined that he had died of head injuries in the post mortem
certificate, Ex.56. He also conducted post-mortem examination on the dead body of Jagan
alias Jagadeesan at about 12.05 p.m. on 13.10.1997 and having found as many as 13 cut
injuries and subdural and subarachnoid haemorrage over both cerebral hemisphere, opined
that he had died of head injuries in the post-mortem certificate, Ex.58.
16. The post-mortem Constables recovered apparels and other articles found on the
body of the aforesaid remand prisoners after the post mortem examination was over and
entrusted them to PW35 for the purpose of investigation in this matter. On 4.11.1997, at
about 7.00 am, PW35 arrested A4 Lakshmanan and on the basis of the admissible portion in
the confession statement given by him, blood stained billhook was recovered at his instance.
17. On 6.11.1997, at about 1.30 p.m., A8 Kamaraj, A12 Selvam, A14 Shanmugam,
A15 Karuppiah, A16 Manoharan, A17 Moorthy and A18 Dhanapal, were arrested and on the
basis of the confession statement given by each of the accused, arms and ammunitions from
the respective accused were recovered under the cover of relevant mahazars.
18. On 10.11.1997, at about 9.30 a.m., A5 Saravanan, A6 Surendran and A11 Sankar,
were arrested in the presence of witnesses. On the basis of the confession statements given
by them, the weapons of offence were recovered at their instance. On the basis of the
requisition given by the Inspector of Police PW35, the learned Judicial Magistrate
Muthusamy (PW26), having observed all the formalities, conducted Test Identification
Parade on 12.11.1997 and 25.11.1997. P.Ws.1 to 3 were required to identify the accused viz.,
A2, A4, A8, A9, A10, A12, A15, A16, A17 and A18 in the Identification Parade that was
held on 12.11.1997. PW1 and PW2 identified all the aforesaid accused except A4. PW3
identified all the aforesaid accused in the Test Identification Parade that was held on
12.11.1997. Again on 25.11.1997, PW1 could identify A6 and A11, but, could not identify
A5. P.Ws.2 and 3 could identify A5, A6 and A11. As A1 was arrested later in point of time,
he was not subjected to Test Identification Parade. Likewise, A3, A7 and A13 also were not
subjected to Test Identification Parade. The proceedings of the Test Identification Parade
conducted by the learned Judicial Magistrate Muthusamy PW26 were marked as Exs.P66 and
P68.
19. A3 Paramaswaran, who was involved in another Crime No.72 of 1998 on the file
of Omalur Police Station, was arrested on 21.1.1998 at about 6.30 p.m. On 1.2.1998 at about
3.00 p.m., A13 Saminathan, who was involved in another Crime No.109 of 1998 on the file
of Omalur Police Station, was arrested for the purpose of this case. On the basis of the
confession statement given by him, a billhook was recovered at his instance. On 12.2.1998,
at about 2.30 p.m., A1 Nagarajan, who was involved in another Crime No.156 of 1998 on the
file of Omalur Police Station, was arrested and on the basis of the confession statement given
by him, Yamaha motorcycle and billhook were recovered at his instance. PW4 Kuppusamy,
PW5 Govindaraj and PW6 Lakshmanan have spoken to the role of the accused in the ghastly
crime of multiple murders. They could also identify the first accused who participated in the
occurrence. PW35 sent all the Material Objects for chemical examination. Having completed
the investigation, PW35 laid final report as against the accused.
20. The incriminating circumstances spoken to by the witnesses examined on the side
of prosecution were put to the accused to respond under Section 313, Cr.P.C. A4, A8, A12,
A14, A16, A17 and A18 have set up a plea of alibi. The other accused have totally denied
their role in the commission of murder of the remand accused. On the side of the defence,
D.Ws.1 to 13 were examined.
21. DW1 was the President of Navapatti Panchayat during 1996 to 2000. N.R.
Dhanapal, DW9 was a Panchayat Councilor. Both of them have spoken to the surrender of
A4, A8, A12, A14, A16, A17 and A18 by the public to the Deputy Superintendent of Police
who was camping at the Travelers Bungalow at Mettur.
22. Balasubramaniam, DW2 and Nagarajan DW7 who are Labour Union Leaders have
deposed to the effect that there was a surrender of the aforesaid accused by the public to the
Deputy Superintendent of Police. They have also spoken to the effect that A4, A8, A12, A15
and A16 who worked as contract labourers in the Thermal Plant participated in the strike at
Mettur at the time of the alleged occurrence on the fateful day.
23. DW8 deposed that A17 and A18 worked in his field at the time when the
occurrence unfolded. Bhuvaneshwari DW3 is none other than the wife of the first accused
Nagaraj. She would state that the arrest of A1 was not effected as stated by the prosecution
and in fact, A1 was taken away by the police from her residence at Tirupur. She would also
state that A1 was manhandled by the investigating sleuths and as a result of which A1
sustained multiple injuries.
24. Jaya, DW4 who is the wife of A14 Shanmugam and Selvi DW5 who is the wife of
A12 Selvam have stated that their husbands worked in Thermal Power Station and
participated in the strike on the fateful day. Santhi, DW6 would state that she went to the
place where the strike was going on and discussed with her husband A4 Lakshmanan about
the family problem at the time of occurrence. Mahaesraj, DW10, who is a relative of A7
Kalaivanan, would state that A7 was with him. Vasantha, DW11, mother of A10 Anbarasan
would state that A10 was innocent but, the police apprehended him. Vellachi, DW12, the
mother of A3 Parameswaran would also state that without any rhyme or reason, A3 was
apprehended by the police. Jaya DW13, wife of A8 Kamaraj would state that A8 participated
in the strike at the Thermal Plant at the time of occurrence.
25. The Trial Court has chosen to examine the Additional Superintendent of Police as
CW1. The wound certificate of PW3 was marked as Ex.C3 and the wound certificate of the
deceased Natarajan, Sub Inspector of Police, was marked as Ex.C4.
26. The Trial Court, having thoroughly perused the evidence on record, found that A1,
A2, A3, A6, A7, A9, A10, A11, A13, A17 and A18 were members of unlawful assembly
armed with lethal weapons and committed an offence punishable under Section 148 of the
Indian Penal Code and they have also obstructed the police escort jeep from proceeding
further on the main road and thereby they committed an offence punishable under Section
341 of the Indian Penal Code. As the Trial Court was convinced that the aforesaid accused,
as per the evidence available on record, used country bombs at the time of occurrence, they
were found guilty of an offence punishable under Section 3 of the Explosive Substances Act
also. The aforesaid accused also were convicted for an offence punishable under Section 302
read with 149, IPC (five counts) for the murder of five remand accused. As there was no
legal evidence on record to establish the role of individual accused in attempting to murder of
P.Ws.1 to 3, they were acquitted of the charge under Section 307, IPC. A4, A5 A8, A12,
A14, A15 and A16 were relieved of all the charges framed as against them as the prosecution
could not establish beyond reasonable doubt their role in the crime alleged against them.
27. Criminal Appeal Nos.1439 of 2004, 195 of 2005 and 290 of 2005:—
A7 has preferred Criminal Appeal No.1439 of 2004, A3 Criminal Appeal No.195 of
2005 and A13 Criminal Appeal No.290 of 2005.
28. Mr. S. Doraisamy, learned senior counsel appearing for A7, A3 and A13 would
submit that except the omnibus statement of the witnesses examined on the side of
prosecution that A7, A3 and A13 also participated in the occurrence, there is no legal
evidence to connect the aforesaid accused with the crime. The testimony of the witnesses for
the first time before the Court without any Identification of them earlier will not stand the
legal scrutiny. He would further submit that their names also do not find a place in the First
Information Report.
29. Mr. N.R. Elango, the learned Public Prosecutor would submit that though there
was no Test Identification Parade conducted so far as A7, A3 and A13 are concerned,
inasmuch as witnesses have spoken before the Trial Court to the effect that those accused
also participated in the occurrence, conviction recorded by the Trial Court will have to be
confirmed.
30. As rightly pointed out by the learned counsel appearing for the appellants, no Test
Identification Parade was arranged as far as the aforesaid accused are concerned. It is not the
case of the prosecution that A7, A3 and A13 were already known to the prosecution
witnesses. It is found from the evidence let in on the side of the prosecution that the
occurrence commenced with throwing country bomb in front of the police jeep which
escorted the remand prisoners from Mettur to Salem. No specific overtact has been attributed
to these accused by any of the prosecution witnesses except the testimony in generic about
the role of all the 18 accused in this case. There was no specific identification of these
accused during the course of trial also. We genuinely doubt the role of A7, A3 and A13 in
the commission of the various offences charged against them by the Trial Court. Therefore,
the benefit of doubt is conferred on A7, A3 and A13 as known to law and they are acquitted
and as a consequence, Criminal Appeal Nos.1439 of 2004, 195 of 2005 and 290 of 2005 are
allowed and A7, A3 and A13 are directed to be set at liberty forthwith.
31. Criminal Appeal Nos.1395 of 2004, 1412 of 2004, 162 of 2005, 1032 of 2006 and
15 of 2007.—Criminal Appeal No.1395 of 2004 is preferred by A17 and A18, Criminal
Appeal No.1412 of 2004 by A11, Criminal Appeal No.162 of 2005 by A10, Criminal
Appeal No.1032 of 2006 by A6 and Criminal Appeal No.15 of 2007 by A9.
32. Heard Mr. K.V. Sreedharan, learned counsel appearing for A17, A18 and A11, Mr.
S. Doraisamy, learned Senior Counsel appearing for A10, A6 and A9 and Mr. N.R. Elango,
learned Additional Public Prosecutor appearing for the State. It is submitted on behalf of
A17, A18, A11, A10, A6 and A9 that though these accused were allegedly identified by
P.Ws.1 to 3 before the learned Judicial Magistrate concerned, only an omnibus testimony to
the effect that all the accused participated in the occurrence is found on record. No specific
overtact was attributed to A17, A18, A11, A10, A6 and A9 by P.Ws.1 to 3. Further, those
accused have specifically stated before the learned Judicial Magistrate, who conducted Test
Identification Parade that their photographs were already shown to P.Ws.1 to 3 who were the
police officials for the purpose of enabling them to identify the accused. The entire villagers
had submitted petitions before the authorities seeking justice on the specific and solid plea
that A17 and A18 were also produced by the villagers for the purpose of smooth
investigation to be conducted by the investigating officer in this case. The plea of the
villagers had fallen on deaf ears. The arrest of A17 and A18 spoken to by the witnesses was
only stage-managed, they would further contend.
33. Mr. N.R. Elango, learned Additional Public Prosecutor for the State would
earnestly submit that P.Ws.1 to 3 have categorically identified the aforesaid accused not only
during the course of Test Identification Parade conducted by the learned Judicial Magistrate
but also during the course of trial when the accused were in the dock. Without an iota of any
material worth mentioning, the defence witnesses have come out with an unbelievable story
that A17 and A18 were not at all present at the scene of occurrence. Inasmuch as the place of
occurrence and the place where A17 and A18 had allegedly worked in the field could be
covered within about 45 minutes. Therefore, there is every possibility for A17 and A18 to
arrive at the scene of occurrence from the place of their avocation within a short span of time
even assuming for the sake of argument without actually admitting the case of defence that
they were engaged otherwise on the date of occurrence. It is his further submission that the
Trial Court has rightly rejected the contention of alibi set up by A17 and A18 and the
defence of A6, A9, A10 and A-11 that they had been falsely implicated.
34. It is very much pertinent to note that the occurrence had taken place not in the pitch
dark, but in a broad day light at about 4.45 p.m. on Mettur to Omalur Main Road near railway
gate over there. P.Ws.1 to 3, police officials, who travelled in the very same escort jeep,
have chosen to identify these accused not only before the Identification Parade conducted by
the learned Judicial Magistrate but also before the Trial Court.
35. Of course, the First Information Report, Ex.P1 can be used only for the purpose of
corroboration or for contradiction of the author thereof when he is examined before the
Court. Inasmuch as the author had already died, the contents thereof cannot be referred to by
this Court and as a consequence, the First Information Report, Ex.P1 loses its probative
value. But, referring to the evidence of Dr. John Gurupatham, PW30, who issued wound
certificate, Ex.P96 to the First Informant, Natarajan, we find that he has categorically
recorded the version of the deceased Natarajan in Ex.P96 to the effect that the said Natarajan
informed him when he was admitted to Government Hospital for treatment that four known
persons and some other unknown persons attacked the police escort jeep and committed the
crime. It is true that P.Ws.1, 2, 3 and 34 respectively have informed Dr. Kalyanaraman,
PW27, when they were admitted to Government Hospital for treatment, that more than ten
unknown persons participated in the occurrence and attacked them and caused injuries. The
said version of those witnesses is found in the wound certificates, Exs.P69, P70, P71 and P72
issued to those witnesses by PW27. Though the said Natarajan is no more, his version before
PW30 cannot be ignored by us. The fact remains that though the accused were not already
known to P.Ws.1, 2, 3 and 34, it is found that four persons, who participated in the
occurrence, were known to the deceased Natarajan.
36. P.Ws. 1 to 3 have not detailed the physical features of the accused before the
investigating officer, but such a deficiency ipso facto cannot be a ground to reject the
identification of the accused before the Court after properly identifying them during the
course of Test Identification Parade.
37. The learned Judicial Magistrate, Shri Muthusamy, PW26, has chosen to conduct
the Test Identification Parade on 12.11.1997 and 25.11.1997 based on the request emanated
from PW35. The proceedings of the Test Identification Parade have been marked before the
Trial Court as Ex.P66 and P68. On a careful perusal of the testimony of the learned Judicial
Magistrate and the aforesaid proceedings recorded by him, it is found that PW1 and PW2
have identified A2, A8, A9, A10, A12, A15, A16, A17 and A18 during the course of Test
Identification Parade that was held on 12.11.1997, but, they failed to identify A4 who was
also subjected to identification on the said day. In the Test Identification Parade that was
held on 25.11.1997, PW1 identified A11 and A6, but, he could not identify A5 but PW2
identified all the three accused viz., A5, A6 and A11 who were subjected to the Test
Identification Parade. PW3, on his part, identified A2, A4, A8, A9, A10, A12, A14, A15,
A16, A17 and A18 in the Test Identification Parade that was held on 12.11.1997. All the
three accused viz., A5, A6 and A11 who were subjected to Test Identification Parade on
25.11.1997 were also identified by PW3.
38. Coming to the criticism levelled against P.Ws.1 to 3 about the identification of the
accused before the Court in general, we find that they have categorically identified the
accused facing trial during the course of Test Identification Parade. They, having specifically
referred to the names of those accused during the course of their testimony before the Trial
Court, deposed that those accused have been properly identified by them during the course of
Test Identification Parade. It is their emphatic assertion that it was only those accused who
attacked them with country bomb and annihilated five remand accused who were escorted by
them under the stewardship of Natarajan who died subsequently. It is true that P.Ws.1 to 3
have deposed during the course of cross-examination that they were not in a position to
identify the accused by their names. We cannot shut our eyes to the fact that as many as 18
accused had participated in the occurrence as per the case of the prosecution. Trial has
commenced after a lapse of about seven years from the date of occurrence. On a careful
perusal of the Test Identification Parade Proceedings, we find that P.Ws.1 to 3 have, in fact,
touched the body of the accused and identified them as culprits who authored the crime. The
Test Identification Parade had been conducted within a short period of about three weeks.
No motive can be attributed to the police officials, P.Ws.1 to 3, who chose to point out their
accusing fingers towards the accused herein. The testimony of P.Ws.1 to 3 is found to be
completely trustworthy and reliable. Further, we find that A9 was apprehended immediately
after the occurrence by PW14. We have no hesitation to accept the evidence of PW14 who
has chosen to depose before the Trial Court that A9 was apprehended by him when he was
fleeing in the aftermath of the occurrence. DW11 is the mother of A10. She has just spoken
about the arrest effected by the police sleuths. A10 had not set up a plea of alibi worth
referring to nor had DW11 spoken about the defence of alibi on behalf of A10.
39. A17 and A18 had set up a plea of alibi. DW8 was examined on their side to speak
to their absence at the scene of occurrence at the relevant point of time. DW8 is the landlord
who leased out his lands to the mother of A18. DW8 has stated before the Trial Court that
A17 and A18, on the relevant point of time, were found engaged in the harvest organised by
the mother of A18. As per the version of DW8, the mother of A18 was the lessee. She was
not examined before the Trial Court. Therefore, we are not inclined to accept the plea of
alibi set up by A17 and A18. A6 and A11 had not set up any plea of alibi. No evidence also
was let in on their side.
40. The allegation as against the prosecution that photographs of the accused were
taken and the same were shown to P.Ws.1 to 3 for the purpose of identification is found not
believable in view of the fact that those accused had not chosen to inform the learned Judicial
Magistrate who remanded them to judicial custody about such undue exercise undertaken by
the police sleuths. A mere suggestion put to the witnesses and the response of the accused
found in the proceedings undertaken by the Trial Court under Section 313, Cr.P.C., without
any basis or foundation, cannot substitute the stature of evidence. The learned Judicial
Magistrate has deposed before the Court that he, having completely adhered to all the
formalities required for conducting the Test Identification Parade, embarked upon such an
exercise. Of course, some of the prisoners who had been associated with the suspected
culprits for the purpose of conducting the Test Identification Parade were in the age group of
26 and 40. Though there is variation in the age group of the prisoners associated with the
suspected accused, that cannot be a valid ground to reject the otherwise acceptable Test
Identification Parade conducted by the learned Judicial Magistrate following all formalities.
The Trial Court has rightly placed reliance on the evidence of PW1 to PW3. There is no
merit in these appeals. For the foregoing reasons, we are inclined to confirm the verdict of
the Trial Court convicting A6, A9, A10, A11, A17 and A18.
41. Criminal Appeal No.669 of 2005:—
This appeal is preferred by the State as against the order of acquittal recorded by the
Trial Judge as against A4, A5, A8, A12, A14, A15 and A16.
42. The learned Additional Public Prosecutor appearing for the State would
vehemently submit that the Trial Court has wrongly recorded acquittal inspite of the fact that
P.Ws.1 to 3 have chosen to identify the aforesaid accused not only when Test Identification
Parade was conducted but also when they were called upon to identify them during the
course of trial. The defence evidence adduced on the side of the aforesaid accused who have
set up the defence of alibi does not inspire judicial confidence. Such cock and bull story
brought before the Court by the accused who are facing a charge of commission of heinous
crime cannot be accepted by the Court of law. The surrender theory spoken to by the defence
witnesses does not in any way help the case of the defence inasmuch as the prosecution has
cogently come out with reliable testimony to show that they also did participate in the crime,
he would further submit.
43. Mr. C.D. Johnson, Advocate was appointed as amicus curie from the Legal Aid
Panel for the accused A4, A5, A8, A12, A14, A15 and A16 since the cause list did not reflect
the name of any counsel who entered appearance for them.
44. The learned counsel Mr. C.D. Johnson submitted when we heard him originally on
4.1.2007 at length that the prosecution has come out with an artificial version as though
P.Ws.1 to 3 could identify the assailants in the midst of the smoke which emanated from a
country bomb exploded in front of the police escort jeep. The Test Identification Parade
conducted in this case is a farce inasmuch as the police officials had an access to the identity
of these accused subsequent to the alleged date of arrest and prior to the date of conducting
the Test Identification Parade. The defence testimony would clinchingly establish that the
accused did participate in the strike that was held against the administration of the Thermal
Power Plant at Mettur. A very vague evidence is found on record to show that all the accused
participated in the occurrence. No specific reference could be made by any of the witnesses
examined before the Trial Court about the role of these accused. Therefore, the accused have
been rightly acquitted by the Trial Court, he would further contend.
45. Mr. C.M. Gunasekaran, a learned Member of the Bar made a mention in the open
Court on 9.1.2007 informing us that on behalf of the aforesaid accused, a Member of the Bar
had already entered appearance. Of course, we find that the Registry had failed to note in
the cause list the appearance entered by the learned Member of the Bar. Therefore,
considering the request made by the learned counsel seeking re-hearing of the matter on his
behalf, we directed the case again to be listed before us on 11.1.2007. Accordingly, the case
was again listed on 11.1.2007 and we heard the submission made by the learned senior
counsel Mr. Shanmugasundaram.
46. The learned senior counsel Mr. Shanmugasundaram appearing for the aforesaid
accused would contend that the Test Identification Parade was not properly conducted by the
learned Judicial Magistrate. The accused had come out with a revelation when they were
examined under Section 313, Cr.P.C., that they were not only shown to the witnesses, but,
their photographs were meticulously taken while they were taken to the learned Judicial
Magistrate for the purpose of remand. The defence witnesses have categorically spoken to
the fact that the accused herein served as contract labourers under a contractor in Thermal
Power Plant, Mettur and participated in the strike at the relevant point of time and were
surrendered before the Deputy Superintendent of Police for the purpose of smooth
investigation of the case. Therefore, the acquittal recorded by the learned Trial Judge for the
aforesaid accused does not warrant interference, he would further contend.
47. The Supreme Court of India in Binay Kumar Singh v. State of Bihar, 1997 SCC
(Cri.) 333, has categorically declared that strict proof is required for establishing the plea of
alibi and the burden of proof is very heavy on the accused to establish the defence of alibi. In
Rajesh Kumar v. Dharamvir, 1997 SCC (Cri.) 591, the Supreme Court has observed that it is
trite that a plea of alibi must be proved with absolute certainty so as to completely exclude
the presence of the persons concerned at the time when and the place where the incident took
place.
48. The fact remains that A4 could not be identified either by PW1 or by PW2 during
the course of Test Identification Parade conducted by the learned Judicial Magistrate. PW1
miserably failed to identify A5 during the course of such Identification Parade. Jaya, DW4, is
the wife of A14 Shanmugam, Selvi, DW5 is the wife of A12 Selvam and Santhi, DW6 is the
wife of A4 Lakshmanan. They have spoken in one voice unanimously that A4, A5, A8, A12,
A14, A15 and A16, who served as contract labourers under a contractor in Thermal Power
Plant, Mettur, did participate in the strike and on the date of occurrence, between 2.00 p.m.
and 5.00 p.m., those accused were seen by them at the strike venue in Mettur. They have
also emphatically stated before the Court that all the seven accused had been produced by the
villagers before the Deputy Superintendent of Police, who camped at the Travellers
Bungalow in Mettur.
49. We will have to see whether there is any corroboration for such testimony of the
defence witnesses. DW1 is the President of Navapatti Panchayat. She speaks to the
surrender of the above seven accused on 6.11.1997 before the Deputy Superintendent of
Police by the villagers. She also refers to the petition sent by the villagers to the authorities in
order to find out the truth by the investigating sleuth. DW2 is the Secretary of the Labour
Union formed for the labourers in Thermal Power Plant, Mettur. He has clearly deposed
before the Court that all the seven accused referred to above worked under a Contractor in
Thermal Power Plant, Mettur and they did participate in the strike from 23.10.1997 to
31.10.1997. The wives of these accused used to bring foodstuff for the striking workers. He
has also stated before the Trial Court about the surrender of the said accused to the Deputy
Superintendent of Police at Mettur and the petitions submitted before various authorities by
the public seeking justice. DW7 is an INTUC Labour Union Leader. He has spoken to the
participation of A4 and A12, who belong to his union in the strike on the fateful day. He has
also spoken to the surrender of the accused and the petitions emanated from the public to
ventilate their grievance. DW9 is a Panchayat Councilor attached to Navapatti Panchayat. He
has also deposed before the Trial Court about the surrender of all the seven accused who
worked in Thermal Power Plant before the Deputy Superintendent of Police. The evidence of
D.Ws.4, 5 and 6 is corroborated by the testimony of D.Ws.1, 2, 7, 9 and 13 referred to above
by us. There is no reason to disbelieve such voluminous evidence found on record on the
side of defence.
50. At this stage, the learned Additional Public Prosecutor would submit that the
attendance register and the acquittance register maintained, admittedly, by the Contractor
who allegedly employed these accused, were not produced.
51. Though such registers were not produced before the Court, we still find that the
testimony of the aforesaid witnesses which stood corroborated is trustworthy and reliable.
PW34, the then Superintendent of Police, Salem, who had control over Mettur and Omalur
Taluks, has deposed that he remembered to have received petitions from the villagers about
the arrest of seven accused for the purpose of taking some action in that respect. He would
further depose that the Additional Superintendent of Police, Mr. Palanisamy, enquired into
such complaint. But, quite unfortunately, when the said Palanisamy was examined, by the
Trial Court, as CW1, he has given very evasive answers saying that he did not remember to
have conducted any sort of enquiry on the basis of the petitions given by the villagers as
against the arrest of the aforesaid seven accused. We are pained to observe that all is not well
with the prosecution as regards the arrest of these seven accused. Some blatant attempt has
been made to burke certain facts from the purview of the Trial Court, we are constrained to
observe in the above facts and circumstances.
52. The learned Additional Public Prosecutor drew the attention of this Court to the
authority reported in Dalip Singh v. State of Punjab, 1998 SCC (Cri.) 207. The Supreme
Court has observed as follows in the aforesaid judgment:—
“8. Coming now to the defence witnesses, we find that Swaran Singh (DW1) and
K.S. Kailey (DW5), Deputy Superintendent of Police and Additional Deputy
Superintendent of Police respectively of Ferozepur were examined to testify that
they had perused the case diary prepared by the Investigating Officer and
interrogated some of the accused and other persons. On their such exercise, they
found that three of the accused, namely Dalip Singh (appellant), Shabeg Singh and
Arjan Singh were innocent. In our considered view, the Designated Court ought
not to have permitted the defence to adduce the above evidence as it is not legally
admissible. In Vijender v. State of Delhi a Bench of this Court, of which one of us
was a member (M.K. Mukherjee, J.) while dealing with a similar question observed
under:
“The result of investigation under Chapter XII of the Criminal Procedure Code is a
conclusion that an Investigating Officer draws on the basis of materials collected
during investigation and such conclusion can only form the basis of a competent
Court to take cognizance thereupon under Section 190(1)(b), Cr.P.C and to proceed
with the case for trial, where the materials collected during investigation are to be
translated into legal evidence. The trial Court is then required to base its conclusion
solely on the evidence adduced during the trial; and it cannot rely on the
investigation or the result thereof.”
We may further add that if the result of investigation was to be made the basis of a
Court’s verdict regarding guilt or innocence of an accused, there would be no need
of a trial in a police case for, relying on the report submitted under Section 173(2),
Cr.P.C a Court would be entitled to decide the fate of the person arraigned. The
evidence of D.Ws. 1 and 5 must, therefore, be left out of our consideration.
Incidentally, we may mention that in spite of the opinion expressed by the above
two superior officers charge-sheet was submitted by the Investigating Officer
against the above-mentioned three accused.”
That was a case where some superior officers had chosen to peruse the case diary
prepared by the investigating officer and having interrogated some of the accused and other
persons had come out with a different conclusion from that of the investigating officer. Here,
in the case on hand, seven accused were allegedly produced before the Deputy
Superintendent of Police by the villagers and justice was sought by sending some petitions to
the higher authorities. There is nothing on record to show that such enquiry report was
perused by the investigating officer in this case. In fact, CW1 has completely burked such a
course adopted by him. It is not an ordinary case where the matrix thereof could have paled
from the memory of a police officer. It is a case where five remand accused were butchered
and as a consequence, three assailants were shot dead by top police officials. Such a
memorable case, would have, definitely, embedded in the mind of a police officer. CW1 has
completely shirked his responsibility and stated before the Trial Court that he could not
remember any enquiry embarked upon by him on the petitions given by the villagers. If such
additional information collected by CW1 had been furnished to the investigating officer, the
course of investigation would have taken a different direction as regards these accused. We
are concerned with the hiding of the materials surreptitiously by the police officials in
connection with the arrest and recovery of the material objects and the consequent doubt writ
large in this case. But, the Supreme Court in the aforesaid case dealt with a situation where
two parallel investigations, one full-fledged and another a partial one, embarked upon by the
police sleuths and the final report armed with telling materials filed by the investigating
officer ignoring the result of an offshoot investigation done partially by the superior officers.
In the above stated circumstances, we find that the fact situation in the present case is totally
different from the hard facts in the case dealt with by the Supreme Court.
53. The fact remains that these accused also were identified by P.Ws.1 to 3 in the Test
Identification Parade and also before the Trial Court. But, some doubt lingers in our mind
about the role of these accused in the crime alleged as against them in the background of the
clinching defence evidence referred to above and the suppression of relevant materials in
connection with the arrest of the aforesaid accused and recovery of the material objects. Such
benefit of doubt will have to be necessarily conferred on these accused.
54. The Trial Court has rightly returned the verdict of acquittal as against A4, A5, A8,
A12, A14, A15 and A16. Therefore, we confirm the order of acquittal recorded by the Trial
Court as against A4, A5, A8, A12, A14, A15 and A16 and dismiss Criminal Appeal No.669
of 2005 preferred by the State.
55. Criminal Appeal No.140 of 2005:—The first accused has preferred Criminal
Appeal No.140 of 2005.
56. Mr. V. Vibhishnan, learned counsel appearing for A1 would vehemently contend
that the First Information Report had not been recorded at the time when it had been
allegedly recorded. The date seal found on the First Information Report does not synchronize
with the date of signature of the learned Judicial Magistrate concerned. The Trial Court
failed to give credence to the evidence of Bhuvaneshwari, DW3, wife of A1 to the effect that
the first accused was apprehended only at Tirupur and not at the place spoken to by the
prosecution witnesses. P.Ws.1 to 3 have stated that unknown persons attacked them, caused
damage to the vehicle and murdered the remand accused. The investigating officer, PW35,
would state that P.Ws.1 to 3 have not disclosed to him that the deceased Natarajan ever
informed them that Kooli Nagarajan (A1) and his gang had descended at the scene of
occurrence. The Yamaha vehicle alleged to have been used by the first accused was not
recovered. A Grade I Constable has not only recorded the First Information Report, but,
registered the same and authored many a document in this case. Therefore, he would contend
that the first accused will have to be given the benefit of doubt.
57. The learned Additional Public Prosecutor would contend that P.Ws. 1 to 3 have
categorically deposed before the Court that A1 was one of the assailants who participated and
committed the ghastly crime as alleged against him. It is his submission that the Yamaha
motorcycle was recovered, but, of course the same was not produced before the Court. The
First Information Report reached the Court within a short span of time and therefore, the First
Information Report is beyond the pale of any doubt. As the injured Natarajan had already
been taken to the hospital for treatment, he had the privilege of giving First Information
Report to the Sub Inspector of Police K. Gowthaman, PW32. There is nothing wrong in
recording the statements of the injured witness by a Grade I Constable. His association
during the course of investigation does not prejudice the interest of the accused. The Trial
Court has rightly recorded the conviction and sentence of the first accused, he would lastly
contend.
58. On a perusal of the wound certificates Ex.P69, P70 and P71 issued to P.Ws.1 to 3
respectively, it is found that PW1 was admitted to hospital at 7.00 p.m., PW2 at 7.10 pm and
PW3 at 7.20 pm on 29.10.1997. Esak, PW17 has categorically stated that on receipt of
information, he went to the scene of occurrence and retrieved P.Ws.1 to 3 and admitted them
to hospital for treatment. Dr. John Gurupatham, PW30 has given treatment to the injured
Natarajan and issued wound certificate Ex.P96. Though P.Ws.1 to 3 have stated that
unknown persons participated in the occurrence, the injured Natarajan has stated before Dr.
John Gurupatham, PW30 that four known persons and some more unknown persons
participated in the occurrence. The wound certificates further reveal that the injured
Natarajan was admitted to hospital for treatment at 5.25 p.m. itself. Within 45 minutes, he
had been taken to the hospital for treatment. Of course, it has been recorded in the wound
certificate Ex.P96 that one Selvaraj, a Constable attached to K. Kudal Police Station
accompanied the injured Natarajan. Unfortunately, the said Selvaraj was not examined
before the Court. But, such a lapse does not persuade us to disbelieve the testimony of Dr.
John Gurupatham PW30 who issued the wound certificate Ex.P96.
59. The First Information Report, Ex.P59 has been recorded by Gowthaman PW32
through the Head Constable, PW24. Both of them have stated that as the injured Natarajan
was not in a position to reduce his version in writing, Pachamuthu, PW24 helped him to
script the First Information Report. On a careful perusal of Ex.P59 it is found that the said
report was registered at 6.20 p.m. on 29.10.1997. The learned Judicial Magistrate has
received the said report along with the printed First Information Report, Ex.P100 at 8.25 p.m.
on 29.10.1997 itself. Within a few hours, the vital documents had reached the learned
Judicial Magistrate, Omalur. Of course, the seal of the Court bears the date 4.11.1997. On a
perusal of the calendar for 1997, it is found that there had been intervening holidays and
therefore, the seal of the Court had been affixed on the First Information Report and the
printed copy thereof on 4.11.1997.
60. Everyone, who has sustained injury in the occurrence, would try to reach a hospital
at the earliest point of time availing the mode of transport and the manpower at his command.
P.Ws.1 to 3 are Constables served under the deceased Natarajan. Considering the status of
the injured Natarajan, he would have been taken to hospital first in point of time. Just because
the person who accompanied the injured Natarajan was not examined before the Court, we
cannot throw away the evidence of the prosecution that the First Information Report was
given by the injured Natarajan at 6.20 p.m. on 29.10.1997 and the same reached the learned
Judicial Magistrate at 8.25 p.m. on the said date. The supply of copy of the printed First
Information Report within a short while to the First Informant by PW32 also does not give
rise to any doubt as the hospital, the Court premises and the police station are located very
close by in Omalur.
61. Of course, Bhuvaneswari, DW3 wife of A1 Nagarajan has stated that her husband
was apprehended at Tirupur. The alleged attack launched by the police party immediately
after the arrest of the first accused might give rise to a different of cause of action, but, that
will not definitely relieve A1 from the charge of murder. There might have been some lapse
on the part of the investigating agency in effecting the arrest of A1 in accordance with the
process of law, but, when ocular testimony is there, we cannot simply give safe passage to
the first accused. P.Ws. 1 to 3 have deposed before the Court that the name of the first
accused was referred to during the course of occurrence many an occasion. Though PW35
has contradicted the version of P.Ws.1 to 3 that they did inform PW35 during the course of
interrogation that the deceased Natarajan informed them that Kooli Nagarajan accompanied
by his gang had descended at the scene of occurrence, it is found from his evidence that
P.Ws.1 to 3, during the course of subsequent interrogation, did mention the name of the first
accused as the core accused who perpetrated the crime at the scene of occurrence. P.Ws.4, 5
and 6, who are independent witnesses to the occurrence, have deposed that the first accused
also participated in the occurrence. Of course, the motorcycle had been recovered by PW35,
but, unfortunately, the same had not been produced before the Court for scrutiny. P.Ws.4, 5
and 6 have also categorically deposed that it was the first accused who sped away from the
scene of occurrence after committing the crime riding the motorcycle as pillion rider. Inspite
of searching cross-examination done by the defence, the evidence of P.Ws.4, 5 and 6 could
not be impeached. Their testimony lends corroboration to the evidence of P.Ws.1 to 3. Of
course, PW24 has assisted PW32 in recording the First Information Report and effectively
assisted the process of investigation. There is no legal bar for a Grade I Constable to assist
the investigating officer in a case of this magnitude.
62. We are convinced with the available evidence on record that the first accused also
was a member of the unlawful assembly and having intercepted the police escort jeep, threw
country bomb and committed the murder of the five remand prisoners along with other
accused. There is no warrant for interference with the judgment of conviction and sentence
recorded by the Trial Court as against the first accused. Therefore, the Criminal Appeal
No.140 of 2005 stands dismissed.
63. It is found that the Trial Court has chosen to convict all the accused for offence
under Section 302, IPC (five counts) and impose life sentence to run consecutively. We are
not in agreement with such an imposition of consecutive sentence of life on the accused. It is
relevant to refer to the provisions of Section 31 of the Code of Criminal Procedure, 1973
which reads as follows:—
“Sentence in cases of conviction of several offences at one trial.—(1) When a
person is convicted at one trial of two or more offences, the Court may, subject to
the provisions of Section 71 of the Indian Penal Code (45 of 1860), sentence him
for such offences, to the several punishments prescribed therefor which such Court
is competent to inflict; such punishments when consisting of imprisonment to
commence the one after the expiration of the other in such order as the Court may
direct, unless the Court directs that such punishments shall run concurrently.
(2) In the case of consecutive sentences, it shall not be necessary for the Court by
reason only of the aggregate punishment for the several offences being in excess of
the punishment which it is competent to inflict on conviction of a single offence, to
send the offender for trial before a higher Court:
Provided that—
(a) in no case shall such person be sentenced to imprisonment for a longer period
than fourteen years;
(b) the aggregate punishment shall not exceed twice the amount of punishment
which the Court is competent to inflict for a single offence.
(3) For the purpose of appeal by a convicted person, the aggregate of the
consecutive sentences passed against him under this section shall be deemed to be
a single sentence.”
The proviso to sub-section (2) of Section 31 referred to above mandates that an
accused cannot be sentenced to imprisonment for a longer period than fourteen years. The
consecutive sentence that is imposed by the Court can be subject to the proviso detailed
hereinabove. Further, there cannot be two terms of life for an individual. In that sense also,
it will be ludicrous to order consecutive sentence of life.
64. In view of the above, setting aside the conviction recorded as against A7, A3 and
A13 in S.C.No.34 of 1999, they are acquitted of all the charges and they are set at liberty if
their custody is not required in connection with any other case and the bail bonds executed by
them shall stand discharged and as a result, Criminal Appeal Nos.1439 of 2004, 195 of 2005
and 290 of 2005 stand allowed, confirming the order of conviction as against A1, A6 A9,
A10, A11, A17 and A18 in S.C.No.34 of 1999, Criminal Appeal Nos.140 of 2005, 1032 of
2006, 15 of 2007, 162 of 2005, 1412 of 2004 and 1395 of 2004 stand dismissed but, the
sentence for the conviction recorded by the Trial Court under Section 302, IPC (five counts)
as against A1, A6 A9, A10, A11, A17 and A18 shall run concurrently and not consecutively
as ordered by the Trial Court and confirming the order of acquittal recorded by the Trial
Judge as against A4, A5, A8, A12, A14, A15 and A16, Criminal Appeal No.669 of 2005
preferred by the State stands dismissed.
Order accordingly.
[2007 (1) T.N.L.R. 233 (Mad)]
MADRAS HIGH COURT
Before:- R. Regupathi, J.
S. Venkatesan…………………………………Petitioner
Versus
Maheswari and others………………………..Respondents.
[Criminal O.P. No. 39027 of 2004, decided on 29th August, 2006]
Maintenance—To wife and children—Entitlement of—After obtaining
permission from the first wife as she was sick, the second marriage was performed for
the purpose of looking after the children of the first wife—Though marriage of the first
petitioner void, maintenance to be granted—Permanent alimony and maintenance can
be granted, even though the marriage of a spouse has been declared null and void under
Section 11 of the Hindu Marriage Act, 1952. (Para 6, 7 and
8).
Case law.—(2005) 3 SCC 33—referred.
Counsel.—Mr. S.N. Ravichandran, for the petitioner; M.V. Muralidaran, for the
respondents.
Judgment
R. Regupathi, J.—The petition for maintenance has been filed by the wife and the
two children. The learned Magistrate, after conducting enquiry, awarded maintenance at the
rate of Rs. 600/- for the wife and Rs. 500/- each for the two children.
2. Aggrieved against that, a revision had been filed before the Appellate Forum and the
same was dismissed. Subsequently, the present petition has been filed before this Court.
3. The learned counsel for the petitioner/husband submits that the first respondent/wife
is the second wife of the petitioner. The first respondent married the petitioner knowingly
that the petitioner is living with the first wife. Under such circumstances, the marriage of the
petitioner with the first respondent has to be treated as a void marriage and she cannot be
construed as a wife at all and she is not entitled for maintenance.
4. It is further submitted that at the time when the petitioner was living with the first
respondent, a property has been purchased and registered in her name. Moreover, the
petitioner is working as an attender and earning a meagre salary. The order passed by the
learned Magistrate is erroneous and at any rate, the amount ordered to be paid is also
unreasonable.
5. Per contra, learned counsel for the respondents submits that after obtaining
permission from the first wife, as she was sick, the second marriage was performed for the
purpose of looking after the children of the first wife. When the petitioner was living with the
first respondent, two children were also born to the petitioner.
6. I have perused the materials available on record and submissions made. In a case
reported in (2005) 2 SCC 33 (Rameshchandra Rampratapji Daga v. Rameshwari
Rameshchandra Daga), it has been held that permanent alimony and maintenance can be
granted, eventhough, the marriage of a spouse has been declared null and void under Section
11 of the Hindu Marriage Act, 1955. Under such circumstances, it cannot be construed that
the marriage of the first petitioner is void. Moreover, though the order has been passed on
19.05.2003, nothing has been paid to the respondent till today, in view of the stay granted by
this Court.
7. Admittedly, the petitioner was living with the first respondent and has given birth to
two children. The learned Judicial Magistrate, after giving sufficient opportunity, has come to
the conclusion and ordered maintenance of the amount aforementioned. In the revision, it has
been confirmed by the lower appellate Court. The petitioner has filed this petition under
Section 482, Cr.P.C., though there is a specific bar prohibiting the second revision petition
indirectly under Section 482, Cr.P.C.
I do not find any merit in this petition and accordingly, the petition is dismissed.
Petition dismissed.
