K.Ramachandran v. CBI, (ACB)

BAIL SLIPThat the petitioner/Appellant/Accused namely K.Ramachandrandirected to released on bail by the Order of this Court dated30.4.2001 and made in Crl.M.P.No.2665/2001 in Crl.A.No.399/2001. IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 09.07.2010CORAM THE HONOURABLE MR. JUSTICE T.SUDANTHIRAMCrl.A.No.399 of 2001K.Ramachandran .. Appellant/AccusedVs.Superintendent of Police,CBI, (ACB), Chennai-6... Respondent/ComplainantPrayer:- Criminal Appeal filed under Section 374 of Cr.P.C. againstthe order dated 11.04.2001 passed in C.C.No.198 of 1997 inR.C.No.40(A) of 1995 by the learned Principal Special Judge for CBICases, Chennai. For Appellant : Mr.R.Shanmugha Velayutham, Senior Counsel for Mr.J.Vijayaraghavan For Respondent : Mr.N.Chandrasekaran, Special Public Prosecutor for CBI Cases.JUDGMENT The appellant herein is the accused in C.C.No.198 of 1997 onthe file of the learned Principal Special Judge for CBI Cases,Chennai and he stands convicted for the offences under Sections409, 420 (19 counts), 477(A) of I.P.C. and Section 13(1)(c) & (d)r/w.13(2) of Prevention of Corruption Act and sentenced to undergorigorous imprisonment for one year and to pay a fine of Rs.100/-,in default, to undergo rigorous imprisonment for six months foreach charge. (Total fine of Rs.2,300/-). Aggrieved by the saidconviction and sentence, the appellant has preferred this criminalappeal.2.The case of the prosecution, in brief, is as follows:- https://hcservices.ecourts.gov.in/hcservices/ During the year 1994, the accused Ramachandran wasfunctioning as a Senior Commercial Clerk in the office of the ChiefBooking Supervisor, Southern Railway at Jolarpet. During thatrelevant period, the paper tickets were prepared in triplicatecarbon copy and one copy would be given to the passenger andanother copy would be given to the accounts section and the thirdcopy would be retained in the book itself. The passengersentrusted the train fair to the accused. The accused entered theactual train fair in the passengers form but he has entered thelessor amount in the counter part. Similarly, from 19 passengers,he received the actual fair totally in a sum of Rs.8,542/- and outof that amount, he had shown in the counter part only a sum ofRs.1,645/- and remitted the said amount and misappropriated thebalance amount of Rs.6,897/-. On 07.07.1995, as per theinstructions of the Senior Officer, P.W.3 and his colleagueproceeded to the Jolarpet railway station and also verified therecords. On verification of records, it was found that on variousdates, the accused had entered false account in the counter partand thereby misappropriated the amount as mentioned above. Thenthe accused has also admitted his guilt and mentioned that even onearlier occasion, he had committed the similar offence ofmisappropriation totally to the tune of Rs.1,00,000/- and he wasprepared to repay the amount. The accused has given writtenacknowledgment under Ex.P.93 and also paid a sum of Rs.10,000/- onthe same day i.e., on 07.07.1995 towards the part payment ofmisappropriated amount. (ii) P.W.11, the Inspector of Police, CBI, had registered acase against the accused and prepared the First Information ReportEx.P.110. P.W.12, the Inspector of Police, who took up furtherinvestigation in this case, had obtained the specimen signaturesfrom the accused and sent the same to the Handwriting ExpertOpinion for comparison. P.W.9, handwriting expert, also has givenhis opinion with the detailed reasons in Ex.P.103 series. P.W.12,the Investigating Officer, has also obtained the sanction orderunder Ex.P.1 from the competent authority and filed the finalreport against the accused.3.In order to establish the case, the prosecution examinedP.Ws.1 to 12; marked Exs.P.1 to P.110. The accused was questionedunder Section 313 Cr.P.C. with regard to the incriminatingcircumstances and he denied his complicity. On behalf of theaccused, D.Ws.1 to 4 were examined and Exs.D.1 to D.4 were marked.4.D.W.1 is the Officer who had accompanied P.W.3. D.W.2 isthe Vigilance Inspector of Police at Southern Office who had notconducted any independent enquiry regarding the alleged https://hcservices.ecourts.gov.in/hcservices/ misappropriation. D.W.3 was employed as the Deputy Chief AccountsOfficer, Traffic Southern Railway at Chennai. He deputed P.W.3 andP.W.1 in connection with the present case to Jolarpet Junction andgave them instruction orally to verify the accounts. The accusedexamined himself as D.W.4. He had deposed that he had not signed insome of the documents and he denied the contents of the documentsas being written by him. He had also deposed that he was threatenedto write the sentences in Ex.P.93. Further, on 07.07.1995, theInspector of Police, CBI and R.3 Inspector also were present andthreatened him to write the sentences in Ex.P.97 also. He has alsodeposed that a sum of Rs.10,000/- was paid on 07.07.1995 by oneMr.Sampath and not by him and on 08.07.1995, one Mr.Kanagarajpledged certain jewels at Jolarpet State Bank and obtained a loanof Rs.40,000/- and the accused had pledged his jewels for a sum ofRs.50,000/- and the said amount was paid only at the compulsion bythe CBI Officer. Totally, a sum of Rs.1,00,000/- was paid only byhim at the compulsion of the CBI Officer.5.The Trial Court, after analyzing the oral and documentaryevidence, found the accused guilty and sentenced him as alreadystated above.6.Mr.R.Shanmugha Velayutham, learned Senior Counselappearing for the appellant/accused has submitted that the sanctionis not proper in this case and the same was not given by thecompetent authority. The Senior Commercial Manager is not thecompetent authority to remove the accused from service and it wasonly the General Manager, who was the competent authority to removethe accused from service. The learned Senior Counsel furthersubmitted that the trial Court ought to have taken intoconsideration the evidence of D.W.4. D.W.4 had specifically statedthat Exs.P.93 and 97 are not given by him voluntarily.7.Per contra, the learned Special Public Prosecutor for CBICases submitted that P.W.1, the Senior Commercial Manager hadspecifically stated that he was the competent authority to takedisciplinary proceedings against the accused including removal fromservice and as such, he is the competent authority and no relevantdocuments are filed by the defence or in the cross-examination, itis not established that it is only the General Manager, who is thecompetent authority to remove the accused from service. It isfurther submitted that to prove the charge of misappropriation bythe accused, the relevant documents viz., Exs.P.2 to P.87 weremarked and the accused also admitted before the officials about hisguilt and also paid a sum of Rs.10,000/- on 07.07.1995 as mentionedin Ex.P.94. Further, he has paid a sum of Rs.90,000/- on 08.07.1995as mentioned in Exs.P.95 and 96. The confession statement of theaccused is also marked as Ex.P.97. https://hcservices.ecourts.gov.in/hcservices/

8.This Court has considered the submissions made by bothparties and perused the materials available on record.9.Though it is contended by the learned Senior Counselappearing for the appellant/accused that Ex.P.1-sanction order wasnot given by a competent authority, P.W.1-the Senior CommercialManager specifically had given evidence stating that during therelevant period, he was working as a Divisional Commercial Managerand he was the competent authority to take disciplinary actionagainst the accused including removal from service. Even inEx.P.1, he had stated that he was the competent authority to removethe accused from service and during Cross-examination, he has alsodenied the suggestion put forth by the defence that the GeneralManager alone is the competent authority to remove the accused fromservice. Therefore, the contention of the learned Senior Counselthat P.W.1 was only an authority to take disciplinary proceedingsand not for removing the accused from service cannot be accepted. 10.Section 19 of the Prevention of Corruption Act reads asfollows:-"19. Previous sanction necessary for prosecution.-(1) No Court shall take cognizance of an offencepunishable under Sections 7, 10, 11, 13 and 15 alleged tohave been committed by a public servant, except with theprevious sanction,-(a) in the case of a person who is employed inconnection with the affairs of the Union and is notremovable from his office save by or with the sanction ofthe Central Government, of that Government;(b) in the case of a person who is employed inconnection with the affairs of a State and is notremovable from his office save by or with sanction of theState Government, of that Government;(c) in the case of any other person, of theauthority competent to remove him from his office.(2) Where for any reason whatsoever any doubt arisesas to whether the previous sanction as required undersub-Section (1) should be given by the Central Governmentor the State Government or any other authority, suchsanction shall be given by that Government or authority https://hcservices.ecourts.gov.in/hcservices/ which would have been competent to remove the publicservant from his office at the time when the offence wasalleged to have been committed.(3) Notwithstanding anything contained in the Codeof Criminal Procedure, 1973 (2 of 1974),-(a) no finding, sentence or order passed by aSpecial Judge shall be reversed or altered by a Court inappeal, confirmation or revision on the ground of theabsence of, or any error, commission or irregularity in,the sanction required under sub-section (1), unless inthe opinion of that Court, a failure of justice has infact been occasioned thereby;(b) no Court shall stay the proceedings under thisAct on the ground of any error, omission or irregularityin the sanction granted by the authority unless it issatisfied that such error, omission or irregularity hasresulted in a failure of justice;(c) no Court shall stay the proceedings under thisAct on any other ground and no Court shall exercise thepowers of revision in relation to any interlocutory orderpassed in any inquiry, trial, appeal or otherproceedings.(4) In determining under sub-section (3) whether theabsence of, or any error, omission or irregularity in,such sanction has occasioned or resulted in a failure ofjustice, the Court shall have regard to the fact whetherthe objection could and should have been raised at anyearlier stage in the proceedings.Explanation.- For the purposes of this section,(a) error includes competency of the authority togrant sanction;(b) a sanction required for prosecution includesreference to any requirement that the prosecution shallbe at the instance of a specified authority or with thesanction of a specified person or any requirement of asimilar nature."11.It is held by the Hon,ble Supreme Count in the decisionreported in 1999 SCC (Cri.)1494 (CBI Vs. V.K.Sehgal) at paragraphNo.10 as follows:- https://hcservices.ecourts.gov.in/hcservices/ "A Court of appeal or revision is debarred fromreversing a finding (or even an order of conviction andsentence) on account of any error or irregularity in thesanction for the prosecution, unless failure of justicehad been occasioned on account of such error orirregularity. For determining whether want of validsanction had in fact occasioned failure of justice theaforesaid sub-section (2) enjoins on the court a duty toconsider whether the accused had raised any objection onthat score at the trial stage. Even if he had raised anysuch objection at the early stage it is hardly sufficientto conclude that there was failure of justice. It has tobe determined on the facts of each case. But an accusedwho did not raise it at the trial stage cannot possiblysustain such a plea made for the first time in theappellate court. In Kalpnath Rai V. State this Court hasobserved in para 29 thus:'29. sub-section (2) of Section 465 of theCode is not a carte blanche for rendering alltrials vitiated on the ground of the irregularityof sanction if objection thereto was raised atthe first instance itself. The sub-section onlysays that "the court shall have regard to thefact" that objection has been raised at theearlier stage in the proceedings. It is only oneof the considerations to be weighed but it doesnot mean that if objection was raised at theearlier stage, for that very reason theirregularity in the sanction would spoil theprosecution and transmute the proceedings into avoid trial".12.It is also held by the Hon'ble Supreme Court in thedecision reported in 2004 SCC (Cri) 2140 (State Vs. T.VenkateshMurthy), at paragraph No.14 as follows:-"In the instant case neither the trial court nor theHigh Court appear to have kept in view the requirementsof sub-section (3) relating to question regarding'failure of justice'. Merely because there is anyomission, error or irregularity in the matter ofaccording sanction, that does not affect the validity ofthe proceeding unless the court records the satisfactionthat such error, omission or irregularity has resulted infailure of justice. The same logic also applies to theappellate or revisional court. The requirement of sub- https://hcservices.ecourts.gov.in/hcservices/ section (4) about raising the issue at the earliest stagehas not been also considered. Unfortunately, the HighCourt by a practically non-reasoned order, confirmed theorder passed by the learned trial Judge. The orders are,therefore, indefensible. We set aside the said orders.It would be appropriate to require the trial court torecord findings in terms of clause (b) of sub-section (3)and sub-section (4) of Section 19."13.In the decision of the Hon'ble Supreme Court reported in(2007) 1 SCC (Cri.) 193 (Prakash Singh Badal V. State of Punjab) inparagraph No.8, it was observed as follows:- "8. The effect of sub-sections (3) and (4) ofSection 19 of the Act is of considerable significance asnoted in Prakash Singh Badal V. State of Punjab. Insub-section (3) the stress is on "failure of justice"and that too "in the opinion of the court". In sub-section (4), the stress is on raising the plea at theappropriate time. Significantly, the "failure ofjustice" is relatable to error, omission or irregularityin the sanction. Therefore, mere error, omission orirregularity in sanction is (sic not) considered fatalunless it has resulted in failure of justice or (sicfailure of justice) has been occasioned thereby. Section19(1) is a matter of procedure and does not go to theroot of jurisdiction. Sub-section (3)(c) of Section 19reduces the rigour of prohibition. In Section 6(2) ofthe Prevention of Corruption Act, 1947 (hereinafterreferred to as "the old Act") corresponding to Section19(2) of the Act, question relates to doubt aboutauthority to grant sanction and not whether sanction isnecessary."14.In view of the ratio laid down by the Hon'ble SupremeCourt in the above said cases, the accused cannot be acquitted onthe ground of mere error in sanction since it is not possible tohold that failure of justice had been occasioned or resulted inthis case.15.P.W.2 was working as a Chief Booking Supervisor in theJolarpet booking office at Southern Railway. He had deposed thathe knows the handwriting of the accused. He had specificallypointed out the documents contained in the paper tickets issued bythe accused and the corresponding carbon copies. The amounts shownin the carbon copy of the paper tickets were less and thosedocuments are in the handwriting of the accused. The handwritingexpert also has given his opinion confirming that those writings https://hcservices.ecourts.gov.in/hcservices/ were made by the accused. The accused was examined himself asD.W.4. He had denied his signatures in Exs.P.3, P.8, P.12, P.15,P.21, P.26, P.30, P.35, P.40, P.45, P.50, P.55, P.60, P.65, P.69,P.73, P.77, P.82 and P.86. These are all the counter foils relatedto the paper tickets. 16.For example, Ex.P.3, which the accused denied, bears theserial No.320629 and in the said document, the amount is mentionedas Rs.152 wherein Ex.P.2, which bears the same serial number, theamount is mentioned as Rs.43. As the accused has not denied hishandwriting in Ex.P.2, then the corresponding document with sameserial number issued bears the same amount. The original blankpaper tickets and its counter foil should be prepared at one andthe same. If not, then the accused only is responsible for suchpreparation. The denial of the accused cannot be accepted. Further,P.W.3-Senior Travelling Inspector of accounts, on instruction ofthe Officer, noticed the irregularity and also gave his reportunder Ex.P.93 to the Divisional Manager. In Ex.P.93, the accusedhad stated that due to his family circumstances, he had resortedthe fraudulent carbon tickets and misappropriated the railway cashof Rs.1,00,000/-. He has also paid a sum of Rs.10,000/- on07.07.1995 towards part payment of misappropriation. Subsequently,on 08.07.1995, he has paid the total sum of Rs.90,000/- and for thepayment of Rs.1,00,000/-, receipts Exs.P.94 to P.96 also issued bythe Commercial Department, Southern Railway. Ex.P.97 is theconfession statement given by the accused to P.W.2. The evidenceof D.Ws.1 to 3 does not help in any manner the denial version ofthe accused, who examined himself as D.W.4. In fact D.W.4 hadadmitted in his evidence about the payment of Rs.1,00,000/- made byhim towards the misappropriated amount. The prosecution had provedthe guilt of the accused beyond reasonable doubt. This Court doesnot find any infirmity in the Judgment given by the trial Courtconvicting the accused.17.The learned Senior Counsel appearing for theappellant/accused had prayed for leniency with regard to thesentence imposed on the accused and also prayed for the sentence ofrigorous imprisonment to be modified as simple imprisonment.18.Considering the submission made by the learned SeniorCounsel appearing for the appellant/accused, this Court confirmingthe conviction modifies the sentence of rigorous imprisonment forone year imposed on the accused as the sentence of simpleimprisonment for one year. The fine amount imposed on theappellant/accused by the Trial Court are confirmed. https://hcservices.ecourts.gov.in/hcservices/

19.Except with the above modification, this Criminal Appealis dismissed. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarjrlTo1.The Principal Special Judge for CBI Cases, Chennai.2.The Superintendent of Police,CBI, (ACB), Chennai-6.3.The Special Public Prosecutor for CBI Cases,High Court, Madras.Copy toThe Section Officer,Criminal Section,High Court, Madras.1 cc To Mr..J.Vijayaraghavan, Advocate, SR.49145 Crl.A.No.399 of 2001mbs(co)pmk.19.7.2010.