Kumaravel v. State Rep. by The Inspector of Police Commercial Crime Investigation Wing, C.I.D., Coimbatore

IN THE HIGH COURT OF JUDICATURE AT MADRASDated:30.04.2009CoramThe Honourable Mr. Justice S.TAMILVANANCrl. R.C.Nos.190 to 195 of 2009Crl.R.C.No.190 of 2009:Kumaravel .. Petitioner in all the Crl.Revision Petitionsvs.State Rep. byThe Inspector of PoliceCommercial Crime Investigation Wing, C.I.D.,Coimbatore .. Respondentin all the Crl.Revision PetitionsPRAYER in Crl.R.C.No.190 of 2009 :Revision filed under Sections 397r/w 401 of Criminal Procedure Code against the order, dated30.10.2008 made in C.M.P.Nos.216 of 2005,217/05,218/05,214/05,213/05;215/05 respectively in C.C.Nos.18 of 1998, 19, 20, 16, 15, 17/98respectively on the file of the Judicial Magistrate No.IV,Coimbatore. For petitioner :Mr.K.Premkumar in all the criminal revision petitions For respondent : Mr.R.MuniyapparajGovt. Advocate (Crl. Side) in all the criminal revision petitions.COMMON ORDERThe question of law involved in all the criminal revisionpetitions are one and the same, hence, after hearing both sides inall the revision petitions, common order is being passed. 2. These Criminal Revision Petitions have been preferred underSection 397 r/w 401 Cr.P.C. The revision petitioner herein is theaccused in the cases in C.C.Nos.18/1998, 19/1998, 20/1998, 16/1998,15/1998 and 17/1998, on the file of the Judicial Magistrate No.IV,Coimbatore. https://hcservices.ecourts.gov.in/hcservices/

3. It is an admitted fact that the petitioner herein had beenSecretary of the Thalavaipattinam Primary Agricultural Co-operativeBank Ltd., for the period from 17.09.1991 to 06.12.1994. On thecomplaint give by the defacto complainant, the respondent hadregistered the case against the petitioner under Sections 408, 471,477(A) and 467 IPC and charge sheet was also filed in the said case.4. The criminal miscellaneous petitions were filed before thetrial court by the petitioner / accused in the criminal case, seekingan order to proceed against one Mrs.Chitra Devi, an employee of theCo-operative Bank Ltd., along with the petitioner / accused andaccording to him, the said Chitra Devi be arrested on the ground thatshe had committed a non-bailable offence. The trial court, by theimpugned orders, dated 30.10.2008, rejected the plea of thepetitioner / accused and dismissed the petitions filed by him, hence,he has come forward with the criminal revision petitions.5. The petitioner has averred that the said Chitra Devi, who wasa clerk working under him in the Bank, was assigned with the work ofissuing receipts towards the loans obtained by various persons andshe was also attending collection of dues and outstanding of theloans from the members. According to the petitioner, he had to goout, for the collection of loan dues and to depend upon the saidclerk. He has further stated that an enquiry under Section 81 of theTamil Nadu Co-operative Societies Act, was ordered behind his back bythe Deputy Registrar of Co-operative Societies, Erode and the enquiryofficer submitted his report on 20.03.1995. Based on the report, theDeputy Registrar of Co-operative Societies, Erode lodged a complaintonly against the petitioner on 12.06.1995 with the respondent police,which was registered in Cr.No.4/95 for the offence punishable underSections 408. 471 and 477 (A) IPC.6. The respondent police laid the charge sheet on 29.11.1997 forthe offences punishable under Sections 408, 467 and 477 (A) IPCalleging that on 08.08.1994, 21.10.1994 and 22.10.1994, thepetitioner had committed criminal breach of trust in respect of FixedDeposit amounts belonging to the prosecution witnesses,Mr.Selladurai, Mr.Sreerangasamy and Mrs.Nallammal by forging thevouchers and falsifying the Day-Book entries to the tune ofRs.32,000/-, Rs.45,000/- and Rs.25,000/- and Mrs.Selladurai for SelviAgila (Minor) and Mr.Selladurai by forging the vouchers andfabricating the Day-Book entries to the tune of Rs.4,000/- andRs.24,000/-. As per the prosecution case, the petitioner had forgedvouchers and made false entries in the Day-Book to the tune ofRs.22,916/- and Rs.24,000/- and the forged vouchers relating toMr.Thirumalaisamy, Mr.Ramasamy and Mr.Srirangasamy and Minor Selvirespectively and thereby the petitioner has committed the allegedoffence. https://hcservices.ecourts.gov.in/hcservices/

6. The petitioner / accused has contended that during the courseof trial before the court below, Mrs.Chitra Devi, who was examined asa prosecution witness deposed evidence on 20.01.2005, to the effectthat she had prepared and filled all the loan applications, pro-notesof the depositors and other records and hence, according to thepetitioner, she had involvement in the commission of the allegedoffence. He has further averred that the depositors during the courseof investigation in the criminal case, had alleged that the accusedChitra Devi had received all the Fixed Deposits in their names andtherefore, according to the petitioner, Chitra Devi, clerk of the Co-operative Bank Ltd., should also face the trial along with thepetitioner / accused, however, the court below, by order, dated30.10.2008 has declined to allow the application on the ground thatthere was no sufficient reasons for implicating the said employee ofthe bank as co-accused and proceed with the trial.7. The miscellaneous petitions had been filed by thepetitioner / accused before the trial court under Section 319 Cr.P.C,seeking an order to proceed against Chitra Devi, who was only a clerkunder him, on the ground that she appears to have committed theoffence and that she might be arrested and prosecuted for the non-bailable offence. The petition was filed under Section 319 of Cr.P.C.8. It is seen that Section 319 (1) of the Code of CriminalProcedure reads as follows :"Where, in the course of any inquiry into, ortrial of, an offence, it appears from the evidencethat any person not being the accused hascommitted any offence for which such person couldbe tried together with the accused, the Court mayproceed against such person for the offence whichhe appears to have committed."As per sub-section (2), where such person is not attending theCourt, he may be arrested or summoned, as the circumstances of thecase may require, for the aforesaid purpose. 9. In the instant case, it is not in dispute that the petitionerherein had been Secretary of the Thalavaipattinam PrimaryAgricultural Co-operative Bank Ltd., for the relevant period. Onaccount of the alleged malpractice, the case was registered againstthe petitioner under Sections 408, 471, 477(A) and 467 IPC and chargesheet was also filed against him. Admittedly, as the Secretary of theCo-operative Bank, the petitioner had not filed any complaint againstthe Clerk, Chitra Devi, prior to the date of registering the caseagainst him. As per the statement given by the said Chitra Devi, asfound by the impugned order of the court below, no case was made outagainst her. In a pending case filed against the petitioner, afterthe investigation and filing of charge sheet, the petitioner has https://hcservices.ecourts.gov.in/hcservices/ filed this petition, under Section 319 Cr.P.C, to implead the clerkof the Bank, worked under him as accused, even without impleading heras a party in the miscellaneous petition. It is a settled propositionof law that without impleading a person, no order can be passedagainst a said person and the order so passed could not bind theperson, who was not a party to the proceeding. The petitioner /accused had not impleaded the said Chitra Devi as a respondent in thepetition, for the reasons best known to him. 10. In the instant case, already the petitioner was arrayed asaccused. Without prima facie averments and materials, he cannot filea petition to implead a person, who was working subordinate to him asaccused in the case. As per the prosecution case, the petitionerherein, as Secretary of the Co-operative Bank has signed in all therelevant documents, hence, he cannot shift the burden of committingcriminal breach of trust and in the circumstances, the petitioner,who was the Secretary of the Co-operative Bank cannot shift theburden on his clerk. Had his allegations against the clerk was trueand genuine, he could not have signed the documents and further, hehad not filed any complaint independently against the said ChitraDevi, a clerk of the Bank before the police before the case wasregistered against him. Only after the case was registered againstthe petitioner, he has come forward with this petition to implead hisclerk, Chitra Devi as accused, by raising allegation that she hadcommitted all those offences, which cannot be accepted. As discussedearlier, filing a petition, without impleading her a party in theproceeding and seeking an order behind her back would show that thepetition itself is not maintainable. 11. It is a settled proposition of law that under Section 319Cr.P.C, it should be read, in consensus with Section 398 Cr.P.C asheld by the Hon'ble Supreme Court in 1990 (4) SCC 718.12. The provisio to Section 398 reads that no Court shall makeany direction under this section for inquiry into the case of anyperson who has been discharged unless such person has had anopportunity of showing cause why such direction should not be made.In the instant case, the petitioner / accused, who was the Secretaryof the Bank raised allegations belatedly, in order to shift theburden on a clerk, after the case was registered against him undervarious sections, though the investigation reveals that thepetitioner / accused had to be prosecuted and punished for thealleged offence. On the aforesaid facts and circumstances, the pleaof the petitioner / accused to prosecute Chitra Devi, who was a clerkunder him is not legally sustainable. 13. Therefore, I could find no error or infirmity in theimpugned orders passed by the Court below to interfere with the same,hence, the criminal revision petitions are liable to be dismissed. https://hcservices.ecourts.gov.in/hcservices/

14. In the result, all the criminal revision petitions aredismissed. Sd/- Asst. Registrar / True Copy / Sub.Asst Registrar tsvnTo1. The Judicial Magistrate No.IV Coimbatore. 2. The Public Prosecutor High Court, Madras.+ 1 cc to Mr.K.Premkumar,Advocate,SR.19829 Crl.R.C.Nos.190 to 195 of 2009 MRD(CO)EM/9.6.09