Bail SlipThe v. State by Inspector of PoliceC.C.I.W.C.I.D.Police

Bail SlipThe Petitioner/accused (A.Kannan) in both the Crl.RCs was releasedon bail as per order of this Court dated 20.12.2004 made inCrl.MP.No.12310/04 and Crl.MP.No.12313/04 in Crl.R.C.No.2034/04 andCr.R.C.No.2035/04 respectively.IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 21.06.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.R.C.Nos.2034 and 2035 of 2004A.Kannan..Petitioner /accused in both revisions/Appellant/Accused.vs.State by Inspector of PoliceC.C.I.W.C.I.D.Police,Coimbatore(Cr.No.4/2001) .. Respondent/complainant in both Revisions/Respondent/ Complainant These Revision petitions filed under Section 397 & 401 Crl.RCare filed against judgment dated 30.11.2004 in C.A.Nos.30 and 31 of2004 respectively passed by the Additional District & SessionsJudge, (FTC-1), Coimbatore , modifying the judgment made inC.C.Nos.66 and 67 of 2002 respectively on the file of the JudicialMagistrate No.IV, Coimbatore, dated 19.10.2003.For Petitioner : Mr.A.Bobblie ( in both Revisions)For Respondent : Mr.V.R.Balasubramaniam( in both Revisions) Additional Public Prosecutor.COMMON ORDERThese revision petitions have been preferred against thejudgment in C.A.Nos.30 and 31 of 2004 respectively passed by thelearned Additional Sessions Judge, (FTC-1) Coimbatore, which hadarisen out of the judgment in C.C.Nos.66 and 67 of 2002 https://hcservices.ecourts.gov.in/hcservices/ respectively on the file of the Judicial Magistrate NO.IV,Coimbatore. Both the cases have been filed against the same accusedKannan/the revision petitioner in both the revisions. 2. In C.C.NO.66 of 2002, the charge against the accused isunder Section 408 of IPC. The short facts in the case is thatbetween the period 27.12.1993 and 31.5.1998, when the accused wasworking as a Salesman in the Cooperative Society,Kothagiri(LiquorUnit), he had received an advance of Rs.1,35,136/65ps for thepurpose of purchasing liquor bottles from TASMAC. But withoutpurchasing the said liquor bottles from the TASMAC, he hadmisappropriated a sum of Rs.1,35,136/65ps.2a. In C.C.No.67 of 2002 the accused has been charged underSection 408 of IPC for having failed to account for a sum ofRs.2,86,838 being the sale proceeds in the above said cooperativesociety, Kothagiri. According to the prosecution, the said amountof Rs.2,86,838 was the amount collected in the said Cooperativesociety on 31.5.1998 by way of selling the liquor bottles. Theaccused has not brought the said sale amount of Rs.2,86,838/- tothe accounts of the said Cooperative society,Kothagiri but hadmisappropriated the same.3. In C.C.No.66 of 2002, P.Ws 1 to 7 were examined and Exs P1to P15 were marked. In C.C.No.67 of 2002, Pws 1 to 8 were examinedand Exs P1 to P20 were marked.4. P.W.1 in both C.C.No.66 of 2002 and C.C.No.67 of 2002 areone and the same person viz., Thiru Chandran, the Deputy Registrarof Cooperative Society. On the complainant received against theadministration of Cooperative society(liquor Unit), Kothagiri, theformer Director of Cooperative society had directed him(P.W.1) asper his proceedings No.6552/98/V.1 dated 28.8.1998 to conduct anenquiry and submit a report under Section 81 of the CooperativeSocieties Act and accordingly he had directed Thiru GopalanAjithkumar, the Cooperative Sub Registrar to conduct the enquiryand complete the same within three months and to file a report andon his request, the date has been extended from 23.11.1998 to27.11.1998 under ExP1 and that he had filed the report after thecompletion of his enquiry on 25.2.1999 and as per his report, hecame to know that the accused had misappropriated a total sum ofRs.4,21,974/65ps(the subject matter in C.C.No.66 of 2002 isRs.1,35,136/65ps and the subject matter in C.C.No.67 of 2002 isRs.2,86,838/-). Ex P2 is the complaint preferred by P.W.1 beforethe Inspector of Police, C.C.I.W.C.I.D(in both the cases). Ex P3 isthe order of P.W.1 dated 28.8.1998 passed under Section 81 of theCooperative Societies Act. Ex P4 is the letter of requisition ofthe Enquiry Officer for extension of time dated 23.11.1998. https://hcservices.ecourts.gov.in/hcservices/ 4a. P.W.2 Thiru A.Raji, an Assistant in the said CooperativeSociety who would depose that the accused was working in the sameCooperative society from 1996 to 1998 as a Salesman and that as perthe stock register for the year 1998, there was no stock on handand there was also no cash on hand. Ex P5 is the order passed bythe President of the Society, directing him to audit the accountand that Ex P6 is the audit report.4b. P.W.3 is the then cashier of the above said society till1999. According to him, the salesman shall deposit the saleproceeds daily with him before 1.00p.m., on the following day andto get receipt from him. He would depose that the accused hadreceived Rs.4,00,000/- towards advance for the purchase of liquorbottle and out of the said amount of Rs.4,00,000/- the accused hadpurchased the liquor bottle except for a sum of Rs.1,35,000/- andthat from enquiry, he came to know that the accused hadmisappropriated the said amount of Rs.1,35,000/- without purchasingthe liquor bottle.4c. P.W.4 in C.C.No.66 of 2002 is Vasanthakumari , the thenAssistant of the abovesaid society who would depose that as on31.5.1998, the accused owes a sum of Rs.4,39,024/- to the societyand the relevant entries are in Ex P7 at page No.44 and that theaccused, after admitting his liability to the tune of Rs.4,39,024/-has signed in Ex P7 at page No.44 in her presence and she has alsoendorsed the same by putting her initials below his(the accused)signature. She would further admit that the accused had repaid asum of Rs.79,209/- in June 1998 and after giving credit to the saidamount of Rs.79,209/-, the balance to be paid by the accused comesto Rs.3,59,815/-. The relevant entries at page 45 in the ledger isEx P8.4d. P.W.4 in C.C.No.67 of 2002 Mrs. Sundari, an Assistant inthe said society during the period 1985 to 2002. According to her,on 7.2.1998, the accused had received an advance of Rs.1,35,000/-for the purpose of purchasing the liquor bottle for the society.The relevant entry is Ex P7. But the accused has not produced anyliquor bottle from the said amount. Through her, Exs P8 to P11entries were made in the ledgers.4e. P.W.5 in C.C.No.66 of 2002 Tmt.Lessi. She is the auditorfor the Cooperative Society, Kothagiri. According to her, as on31.5.1998, the accused Kannan as a salesman of the said societyowes Rs.4,39,024/- to the society and that the accused had receivedRs.1,35,136/65ps by the purchase of liquor bottle for the society.But he neither purchased the liquor bottle nor repaid the amount tothe society thereby misappropriated a sum of Rs.1,35,136/65psreceived by him(the accused) from the society for the purchase ofthe said liquor bottle from TASMAC. https://hcservices.ecourts.gov.in/hcservices/ 4f.P.W.5 in C.C.No.67 of 2002 is Tmt Vasanthakumari.According to her, as per ExP12, the accused owes Rs.4,39,024 to thesociety and that he has repaid Rs.79.209/- in June 1998 and aftergiving credit to the said amount,the balance to be paid by theaccused comes to Rs.3,59,815/-. The relevant entry in the ledger atPage 45 is Ex P13.4g.P.W.6 in C.C.No.66 of 2002 is Thiru K.K.Rajan, the thenPresident of the Cooperative society,Kothagiri. He would admit thatthe accused is a Salesman of the society during the relevant periodand that during audit, it was brought to light that Rs.2,86,838 isthe amount found in shortage in the accounts of the society andthat the accused had failed to pay the advance amount ofRs.1,35,136/65ps received by him for the purchase of liquor bottlefor the society and the relevant entries in the debit ledger areEx.P.11 and Ex P12 at page No.160. The relevant entry in Ex P13Stock Register is at page No.175. As per the said entry, theaccused owes a sum of Rs.1,35,136/65ps to the society.4h. P.W.6 in C.C.No.67 of 2002 is Thiru Samuel. He would alsocorroborated the evidence of P.W.6 in C.C.No.66 of 2002 as to theeffect that the accused owes a sum of Rs.1,35,135/65ps to thesociety as on 31.5.1998.Ex P14 is the receipt signed by the accusedto show that he had received Rs.1,10,000/- from the President ofthe society.4i. P.W.7 in C.C.No.66 of 2002 is Thiru Senthilkumar, theInvestigation Officer who would depose that after registering thecase under C.C.I.W.C.I.D Crime No.4/2001 under Sections 408 and477 A of IPC, on the basis of the complaint Ex P1, he (P.W.7) hasprepared F.I.R. which is marked as Ex P14. He has examined thewitnesses and recorded their statements. After completing theinvestigation,he has filed the charge sheet against the accusedunder Section 408 of IPC on 31.12.2001.4j. P.W.7 in C.C.No.67 of 2002 is Thiru K.K.Rajan, thePresident of the Co-operative society, Kothagiri. According to him,the accused was working during the relevant period as a salesmanand as per the accounts of the society,in May 1998, the accusedowes to the society,a sum of Rs.1,35,136/65ps and the relevantentries in the debit ledger is Ex P1 and the relevant entries in ExP16 at page 160 is Ex P17. As per Ex P18, entry at Page No.175, theaccused owes a sum of Rs.135,136/65ps.4k. P.W.8 in C.C.No.67 of 2002 Thiru Senthilkumar is theInvestigation Officer. On the basis of the complaint Ex P1, he hadregistered the case under C.C.I.W.C.I.D. Cr.No.4/2001 against theaccused under Sections 408 and 477 A of IPC .The First InformationReport is Ex P19. He has examined the witnesses and recorded their https://hcservices.ecourts.gov.in/hcservices/ statements and after completing the investigation, has filed thecharge sheet against the accused under Section408 of IPC.5. On the basis of the above said evidence, when incriminatingcircumstances were put to the accused, the accused would deny hiscomplicity with the crime. 6.After going through both oral and documentary evidence letin by both sides, the learned Trial Judge has come to a conclusionthat the prosecution has proved the charge against the accused inboth the cases and accordingly convicted and sentenced the accusedto undergo one year rigorous imprisonment and slapped a fine ofRs.1000/- with default sentence in both the cases.6a. Against the findings of the learned trial Judge, theaccused has preferred C.A.No.30 of 2004 before the AdditionalDistrict and Sessions Judge, Fast Track Court No1, Coimbatoreagainst the judgment in C.C.No.66 of 2002 on the file of JudicialMagistrate No.IV, Coimbatore and the accused has preferredC.A.No.31 of 2004 before the Additional District and SessionsJudge, Fast Track Court No1, Coimbatore against the judgment inC.C.No.67 of 2002 on the file of Judicial Magistrate No.IV,Coimbatore. The learned first appellate Judge, while confirming theconviction has modified the sentence to three months instead of oneyear rigorous imprisonment which necessitated the accused to preferthese revisions.7. Now the point for determination in these revisions iswhether the enquiry report under Section 81 of the Tamil NaduCooperative Societies Act has been filed in time by the EnquiryOfficer?9. Heard Mr.A.Bobblie, learned counsel appearing for therevision petitioner in both revisions and Mr. V.R.Balasubramaniam,learned Additional Public Prosecutor for the State and consideredtheir rival submissions.10. When these revision petitions were taken up for hearing,the learned counsel appearing for the revision petitioner wouldcontend that the Enquiry Officer Thiru Gopalan Ajith Kumar who wasappointed under section 81 of the Tamil Nadu Cooperative SocietiesAct to enquire into the complaint against the accused by P.W.1 wasnot examined before the trial Court and that there is no datementioned below his signature in Ex P15 in C.C.No.67 of 2002(Ex P10in C.C.No.66 of 2002). The fact that Ex P15 in C.C.No.67 of 2002which is exhibited as ExP10 in C.C.No.66 of 2002 is undated hasbeen admitted in the cross examination by P.W.1 also. But at thetop of the enquiry report Ex P15 in C.C.No.67 of 2002(Ex P10 inC.C.No.66 of 2002), the date has been mentioned as 14.7.1999. https://hcservices.ecourts.gov.in/hcservices/

11. It is not the case of the prosecution that the date14.7.1999 has been tampered with by the accused. Even in the browncolour wrapper sheet to enquiry report Ex P15 in C.C.No.67 of 2002(Ex P10 in C.C.No.66 of 2002) the date of the enquiry report hasbeen mentioned as 14.7.1999. As per Section 81 of the Tamil NaduCooperative Societies Act, the inquiry shall be completed withina period of three months from the date of ordering the inquiry orsuch further period or periods not exceeding three months at a timeas the next higher authority may permit provided that such extendedperiods shall not exceed six months in the aggregate. So as perthe above said provision of law, it is mandatory on the part of theenquiry officer to complete the enquiry and to file his reportwithin nine months from the date of order of enquiry. 12. According to P.W.1, the Deputy Registrar of CooperativeSocieties, the enquiry was ordered on 28.8.1998 by the Registrar ofCooperative societies and that cooperative Sub Registrar, ThiruGopalan Ajithkumar was appointed as an Enquiry Officer and that hehad applied for extension of time for completing the enquiry and onhis request, the time was extended from 23.11.1998 to 27.2.1999and that subsequently, also the time was extended for another threemonths. But absolutely, there is no document produced by P.W.1 toshow that the further time of three months was given from27.2.1999. Ex P1 shows that three months time has been extendedfrom 27.11.1998 to 27.2.1999.. Even though, P.W.1 would depose thatthe enquiry officer has filed his report on 25.2.1999, Ex P15 inC.C.No.67 of 2002(Ex P10 in C.C.No.66 of 2002),the enquiry reportshows that it was filed by the enquiry officer only on 14.7.1999.Under such circumstances, the complaint itself is barred bylimitation under Section 81(4) of the Tamil Nadu CooperativeSocieties Act 1983. The point is answered accordingly.13. In fine, Crl.R.C.No.2034 and 2035 of 2004 are allowedsetting aside the Judgment in C.A.No.30 of 2004 and C.A.No.31 of2004 on the file of the Additional District and Sessions Judge,Fast Track Court No.1, Coimbatore. The accused is acquitted fromthe charges levelled against him. The fine amount,if any paid,shall be refunded to the accused. The bail bond shall standcancelled.sgSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To,1.The Additional District and Sessions Judge, Fast Track Court,No.1 Coimbatore2. The District & Sessions Judge, Coimbatore.3.The Judicial Magistrate No.IV , Coimbatore.4.-do- through the Chief Judicial Magistrate, Coimbatore.5.The Inspector of Police, CCIWCID Police, Coimbatore.|6. The Public Prosecutor, High Court, Madras.7. The Superintendent, Central Prison, Coimbatore.+ 2 ccs to Mr. A. Bobblie and L. Mouli, Advocates SR Nos.36873 &36874GG(CO)SR/27.6.2007Crl.R.C.Nos.2034 and 2035/2004