Thumburaj v. State of Tamilnadu, rep by Inspector of Police,Economic Offences Investigation Branch,CCIW CID (Rural),Coimbatore District

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 18.02.2008CORAM:THE HONOURABLE MR. JUSTICE K.MOHAN RAMCriminal Revision Case No.1757 of 2007and M.P.No.1 of 2007Thumburaj... Petitioner-Vs.-State of Tamilnadu, rep by Inspector of Police,Economic Offences Investigation Branch,CCIW CID (Rural),Coimbatore District.... RespondentPrayer : Criminal Revision Case filed under Sections 397 and401 of the Criminal Procedure Code seeking to set aside theorder passed by the Special Court / Chief Judicial Magistrate,Coimbatore in Crl.M.P.No.703 of 2006 in Spl.C.C.No.84 of 2002,dated 17.07.2007 and issue summons to P.W.7 to P.W.10 andP.W.12 and array them as accused in the case.For Petitioner : Mr.R.N.AmarnathFor Respondent: Mr.Hasan Mohamed Jinnah Government Advocate (Crl. Side)- - -O R D E RThe above revision is directed against the order dated17.07.2007 dismissing the Crl.M.P.No.703 of 2006 inSpl.C.C.No.84 of 2002 on the file of the Special Court/ChiefJudicial Magistrate, Coimbatore.2. The petitioner who is the first accused inSpl.C.C.No.84 of 2002 is facing trial for the offences underSections 420 r/w 109, 465 and 471 IPC. After examination ofwitnesses was over and just before the examination of theInvestigating Officer, the petitioner had filed Crl.M.P.No.703of 2006 under Section 319 of the Cr.P.C. to add P.W.5, P.W.6and P.W.8 viz., Uche Gowder, Chinnasamy and Venkata Subramaniumas the accused in the case and summon them to face the trial. https://hcservices.ecourts.gov.in/hcservices/

3. The case of the petitioner is that P.W.5 Uche Gowderwas the Co-operative Sub-Registrar during the relevant periodand it is evident that P.W.5 is the person authorised toprepare the feasibility report viz., Ex.P.18 and without thefeasibility report a proposal for Co-operative Society cannotbe sent and therefore he was one of the person behind theentire events which culminated in getting the Societyregistered and there is sufficient evidentiary details inrespect of his complicity in the crime and as such he should bearrayed as an accused. Similarly, P.W.8 is the person who hasprepared Ex.P.39 and also recommended for establishing theSociety. There is complicity on the part of the P.W.6 also inthe establishment of the Society as he had prepared Exs.P.33 to37 and Ex.P.25 and therefore P.W.5, P.W.6 and P.W.8 haveindividually and collectively aided in the establishment ofthe Co-operative Society and the answers elicited from them intheir cross examination reveals their connivance or complicityin the crime and therefore they have to be arrayed as accused.4. The said petition was opposed by the respondent byfiling a detailed counter statement inter alia contending asfollows:P.W.5 Uche Gowder was the Co-operative Sub Registrar at theOffice of the Assistant Director of Khadhi and VillageIndustries, Tirupur during the period from 05.04.91 to29.02.92; He signed in the office copy of the feasibilityreport only on 10.05.91 but the Assistant DirectorTr.Ayuthiraman (A2) sent the proposal along with a falsefeasibility report to the Chief Executive Officer on 28.03.91for obtaining prior permission for the registration of theSociety; Uche Gowder joined only on 05.04.91 at the Office ofthe Assistant Director; The feasibility report was sent to theChief Executive Officer before his joining i.e. on 28.03.91.Further the feasibility report was not written by him and heonly signed in the report as per the instructions of theAssistant Director Tr.Ayothiraman. 5. It is further contended in the counter statementthat the petitioner gave an application on 19.03.91 to thesecond accused Tr.Ayothiraman, Assistant Director of Khadhi andVillage Industries, Tirupur for registration of the Society andthe same was received by the second accused on 22.03.91. Buteven before that A2 directed the witness Chinnasamy who is anAssistant in his Office to put up a note for sending theproposal for obtaining prior permission from the ChiefExecutive Officer, Khadhi and Village Industries Board, Chennaifor organising the Society; the second accused sent theproposal on 28.03.91 to the Chief Executive Officer and heattached a copy of the feasibility report with the proposal.The Office copy of the feasibility report was dictated by thesecond accused. The 6th witness Chinasamy who is an Assistant https://hcservices.ecourts.gov.in/hcservices/ in the Office of the Assistant Director (A2) has prepared thenote as per the instructions of the second accused as it washis bounden duty to prepare notes as per the instructions ofthe Assistant Director. But he did not know about the actualfacts about the application of the petitioner and otherconnected facts. 6. It is further contended in the counter statementthat witness No.8 Venkitasubramaniam the then Regional DeputyDirector of Khadhi and Village Industries, Tirupur who hasforwarded the proposal of the Assistant Director (A2) to theChief Executive Officer for the registration of the society andbeyond that the 8th witnesses has not done anything. It isfurther contended that there is absolutely no evidence onrecord to implicate the witnesses M.R.Uche Gowder, Chinnasamyand Venkata Subramanium as accused in the case. It was furthercontended that since earlier petition filed for similar reliefwas dismissed by the Trial Court and the same was confirmed bythe High Court, the present petition is not maintainable.7. The learned Magistrate on a careful consideration ofthe materials on record held that there is no evidence to arraythe witnesses M.R.Uche Gowder, Chinnasamy and VenkataSubramanium in the case, dismissed the petition. Beingaggrieved by that the petitioner is before this Court in theabove criminal revision.8. Heard Mr.R.N.Amarnath, learned counsel appearing forthe petitioner and Mr.Mr.Hasan Mohamed Jinnah, learnedGovernment Advocate (Crl. Side) appearing for the respondent.9. The learned counsel appearing for the petitionersubmitted that from the evidence of P.W.1 it is clear thatEx.P18 feasibility report for the Society was prepared by P.W.5Uche Gowder and without Ex.P.18 the Society cannot be floated.P.W.5 Uche Gowder had deliberately failed in his duty and assuch he should be arrayed as an accused.10. The learned counsel appearing for the petitionerfurther submitted that Ex.P.25 and Exs.P.33 to P37 are therelevant documents for the formation of the Society and thesaid documents were prepared by P.W.6 and thus his complicityin the commission of the crime is established but withoutconsidering the same the Court below has erroneously dismissedthe petition.11. The learned counsel further submitted that withoutEx.P.39 recommendation which was prepared by P.W.8, the Societyin question could not have been formed and hence P.W.8 ought tobe arrayed as an accused. Except the above said submission noother submission have been made. https://hcservices.ecourts.gov.in/hcservices/

12. I have carefully considered the submissions made bythe learned counsel appearing for the petitioner and thelearned Government Advocate (Crl. Side) appearing for therespondent, and perused the materials available on record andthe order of the Court below. 13. The Court below has pointed out that P.W.1 in hisevidence has stated that the witness P.W.5 Uche Gowder had notsigned in the feasibility report and P.W.5 was not aware of themalpractice committed in the Society and there is no directevidence as against P.W.5. The Court below has further pointedout that there is no direct evidence as against P.Ws.5, 6 and 8to proceed against them under Section 319 Cr.P.C.14. It is seen from the counter statement filed by therespondent that when P.W.5 had signed in the office copy of thefeasibility report only on 10.05.91 but earlier to that theAssistant Director (A2) had already sent the proposal alongwith the feasibility report to the Chief Executive Officer on28.03.91 for obtaining prior permission for the registration ofthe Society. Whereas P.W.5 had only joined in the Office ofthe Assistant Director only on 05.04.91. Therefore, thecontention of the learned counsel appearing for the petitionercannot be countenanced. 15. As far as the evidence of P.W.5 is concerned itcannot be used against him in the light of the Proviso toSection 132 of the Evidence Act. In the decision reported inDelhi Administration Vs. Jagit Singh (AIR 1989 SC 598) it hasbeen held as follows:"13. Therefore, a witness is legally bound toanswer any question which is relevant to the matterin issue even if the answer to such question islikely to criminate him directly or indirectly.Proviso to S.132 expressly provides that such answerwhich a witness is compelled to give shall notsubject him to any arrest or prosecution nor thesame can be proved against him in any criminalproceeding except a prosecution for giving falseevidence by such answer. The provisions of provisoto S.132, Evidence Act, clearly protect a witnessfrom being prosecuted on the basis of the answersgiven by him in a criminal proceeding which tend tocriminate him directly or indirectly."16. Therefore when P.W.5 has been summoned as witnessand was examined as P.W.5 and while being examined he has givenanswers, that answers cannot be used against him in subsequentcriminal proceeding since he is clearly protected by theproviso to Section 132, Evidence Act. https://hcservices.ecourts.gov.in/hcservices/

17. As far as P.W.6 Chinnasamy is concerned who is anAssistant in the Office of the Assistant Director (A2) he hadonly prepared the note as per the instructions of A2 forobtaining prior permission from Chief Executive Officer forsending the proposal for registration of the Society. As anAssistant it was his duty to prepare notes as per theinstructions of the Assistant Director and as such on the merefact that he prepared the note it cannot be construed that hehad complicity in the commission of the offence. The learnedcounsel appearing for the petitioner is unable to point out anyevidence on record to proceed against him under Section 319Cr.P.C.18. As far as P.W.8 Venkatasubramaniam is concerned hewas the Regional Deputy Director of Kadhi and VillageIndustries, Tirupur and he had only forwarded the proposal ofthe Assistant Director (A2) to the Chief Executive Officer forregistration of the Society and except forwarding the proposalhe had not done anything warranting invocation of theprovisions contained under Section 319 Cr.P.C. Therefore, thisCourt is unable to accept the contention of the learned counselappearing for the petitioner.19. It may be true that earlier the petition filed bythe petitioner seeking a similar relief came to be dismissedand the order was confirmed by the High Court in revision butthat cannot be a ground for dismissal of the present petitionwhich is filed after the examination of the witnesses was over.Section 319 can be invoked only after the entire evidence isbrought on record and not on the basis of the statement ofwitnesses recorded under Section 161 of the Cr.P.C. andtherefore the additional reasoning assigned by the Court belowin dismissing the petition is erroneous but the other reasoningof the Court below that there is no evidence on record to arraythe witnesses as accused in the case cannot be said to beerroneous.20. This Court is of the view that the order of theCourt below does not suffer from any irregularity or illegalityand hence this Court is not inclined to interfere with thesame. In such view of the matter, the above criminal revisioncase fails and the same is dismissed. Consequently, theconnected M.P. is also closed. KkSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1 The Inspector of Police, State of Tamil Nadu, Economic Offences Investigation Branch, CCIW CID (Rural), Coimbatore District.2. The Special Court / Chief Judicial Magistrate, Coimbatore:MS(CO)SR/28.2.2008order in Crl. R.C.No.1757 of 2007and M.P.No.1 of 2007