K. Ramesh v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:03.09.2010CORAMTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.O.P.No.3914 to 3916 of 2007&M.P.No.1 of 2007Crl.O.P.Nos.3914 & 3915 of 2007K.Ramesh..Petitioner/Accused No.6VsState rep. byInspector of PoliceCCIW/CIDDharmapuri UnitDharmapuri (Cr.No.1 of 2002)..Respondent / ComplainantPRAYER: Criminal Original Petition filed under section 482 ofCriminal Procedure Code praying to call for the records and quashthe Final Report and proceedings in C.C.No.255 of 2003 on the fileof the District Munif-cum-Judicial Magistrate, Pochampalli in asmuch as the petitioner/Accused No.6 is concerned.Crl.O.P.Nos.3915 of 2007K.Ramesh..Petitioner/Accused No.4 VsState rep. byInspector of PoliceCCIW/CIDDharmapuri UnitDharmapuri (Cr.No.1 of 2002)..Respondent/ComplainantPRAYER: Criminal Original Petition filed under section 482 ofCriminal Procedure Code praying to call for the records and quashthe Final Report and proceedings in C.C.No.256 of 2003 on the fileof the District Munif-cum-Judicial Magistrate, Pochampalli in asmuch as the petitioner/Accused No.4 is concerned.Crl.O.P.No.3916 of 2007R.Subramani..Petitioner/Accused No.5VsState rep. byInspector of PoliceCCIW/CID https://hcservices.ecourts.gov.in/hcservices/ Dharmapuri UnitDharmapuri (Cr.No.1 of 2002)..Respondent /ComplainantPRAYER: Criminal Original Petition filed under section 482 ofCriminal Procedure Code praying to call for the records and quashthe Final Report and proceedings in C.C.No.254 of 2003 on the fileof the District Munif-cum-Judicial Magistrate, Pochampalli in asmuch as the petitioner/Accused No.5 is concerned.For Petitioners: Mr.D.Bharatha Chakravarthy for M/s.Sai Bharath and IlanFor Respondent: Mr.I Paul Nobel Devakumar Govt. Advocate (Crl.side)-----ORDERK.Ramesh, who figures as Accused No.6 in C.C.No.255 of 2003and Accused No.5 in C.C.No.256 of 2003 on the file of the DistrictMunif-cum-Judicial Magistrate, Pochampalli has brought-forthCrl.O.P.No.3914 of 2007 and Crl.O.P.No.3915 of 2007 for quashingthe criminal proceedings initiated against him in the respectiveCalender cases referred to above. R.Subramani, the fifth accusedin C.C.No.254 of 2003 on the file of District Munif-cum-JudicialMagistrate, Pochampalli has brought forth Crl.O.P.No.3916 of 2007to quash the said criminal proceedings initiated against him.Since all the three cases came to be initiated based on three finalreports filed in one and the same case viz., Crime No.1 of 2002registered on the file of the respondent police, all these CriminalOriginal Petitions are taken up together for consideration anddisposal by a common order.2.The facts leading to the filing of the above said CriminalOriginal Petitions, in brief, are as follows:-K.Ramesh, the petitioner in Crl.O.P.No.3914 of 2007 as wellas Crl.O.P.No.3915 of 2007 was appointed as Cashier in the Branchoffice of the Krishnagiri Taluk, Agricultural Producers MarketingCooperative Society on 02.05.1990 and was holding the post till10.03.2005. Similarly R.Subramani, the petitioner inCrl.O.P.No.3916 of 2007 was appointed on 29.12.1994 as Cashier inthe Head Office of the Krishnagiri Taluk Agricultural ProducersMarketing Cooperative Society. He worked there as Cashier upto10.12.2006. Sri Karthikeya Cotton Merchants, Kallavi andSelvanayagi Gin and Press Private Limited, Kolinchivadi, Tharapuramhad transactions with the above said Co-operative Society. Cottonwas supplied by the said Co-operative Society to the above saidmerchants on credit basis. However, both the merchants turned outto be defaulters and despite such default, the Society continued tosupply cotton to them on credit basis. The amounts due from thesaid cotton merchants were not fully recovered. Hence theRegistrar of Co-operative Societies ordered an enquiry into theaffairs of Krishnagiri Taluk Agricultural Producers Marketing https://hcservices.ecourts.gov.in/hcservices/ Cooperative Society under the provisions of the Tamil Nadu Co-operative Societies Act, 1983. The Deputy Registrar of Co-operative Societies, Krishnagiri conducted an enquiry under Section81 of the Tamil Nadu Co-operative Societies Act, 1983 and submitteda report alleging certain irregularities, namely, supply of cottonon credit basis to the above said cotton merchants even after theyproved to be defaulters and thus, a loss was caused to the abovesaid Co-operative Society by the default committed by SriKarthikeya Cotton Merchants, Kallavi and Selvanayagi Gin and PressPrivate Limited, Kolinchivadi, Dharapuram. It was also found outthat cotton worth Rs.17,67,078/- was supplied on credit to SriKarthikeya Cotton Merchants, Kallavi, even though the said merchantwas already a defaulter and that entries were made in the books ofthe Society, as if Sri Karthikeya Cotton Merchants, Kallavi soldback cotton worth Rs.17,67,078/- and the said cotton was in turnsold to one Ramasamy Chettiar. It was also found out that despitethe fact that Selvanayagi Gin and Press Private Limited was adefaulter, repeatedly cotton was supplied on credit basis to thesaid cotton merchant to the tune of Rs.83,33,832/-, out of which asum of Rs.29,74,089/- alone was recovered. 3. Under such circumstances, based on the report, a complaintwas preferred by the Deputy Registrar, Co-operative Societies,Krishnagiri and the same was registered as Crime No.1 of 2002 onthe file of the respondent police against 13 persons for allegedoffences punishable under Sections 408, 409 and 477-A I.P.C . TheInspector of Police, CCIW/CID, Dharmapuri unit, who conducted theinvestigation, on completion of such investigation, submittedthree final reports in one and the same Crime Number viz., CrimeNo.1 of 2002 and the same were taken on file by the DistrictMunif-cum-Judicial Magistrate, Pochampalli as C.C.Nos.255 of 2003,256 of 2003 and 254 of 2003 respectively. The petitioner inCrl.O.P.Nos.3914 and 3915 of 2007, viz., Ramesh has been implicatedin C.C.Nos.255 and 256 of 2007 for the alleged irregularities thattook place in the Branch Office of Krishnagiri Taluk, AgriculturalProducers Marketing Cooperative Society. Similarly, Subramani, thepetitioner in Crl.O.P.No.3916 of 2007 has been implicated inC.C.No.254 of 2003 for the alleged irregularities found out in theHead Office of Krishnagiri Taluk, Agricultural Producers MarketingCooperative Society. Since Ramesh and Subramani had signed theday books authenticating the entries therein as cashiers in theBranch Office and Head Office respectively, they were arraigned asaccused on the allegation that they had helped the Secretary andother accused in committing the irregularities of misappropriation,breach of trust and falsification of records. Though thepetitioners were not shown to be one of the accused persons in theFirst Information Report, they have been arraigned as accused inthe respective final reports on the strength of the allegation thatthey abetted the commission of offences by the other officials ofthe Co-operative Society. 4. The criminal proceedings initiated against them inC.C.Nos.255, 256 and 254 of 2003 respectively based on the finalreports submitted by the respondent in Crime No.1 of 2003, are https://hcservices.ecourts.gov.in/hcservices/ sought to be quashed on the ground that there is no material tosustain a prosecution of the petitioners and that the prosecutionitself has been launched on an assumption that the petitionerswould have helped the Secretary and other officials of the Co-operative Society in committing the offences of misappropriation,breach of trust and falsification of records. The criminalproceedings are sought to be quashed on the ground that therecitals regarding the responsibility of the cashiers are againstthe concerned provisions of the Bye-laws of the Co-operativeSociety concerned. 5. On the other hand, the petitions are resisted by therespondent contending that the petitioners, being Cashiers,affixed their signatures in the day book on the close of thebusiness on each day; that the false entries, if any, made byothers could have been noticed by them; that such false entriescould have been brought to the notice of the higher authorities andthat the failure to do so would prove the connivance of thepetitioners with the other accused in the commission of offences,for which criminal prosecution has been launched against thepetitioners in the respective Calender cases.6. This Court heard the submissions made by Mr.Sai Bharath,learned counsel for the petitioners in all the criminal originalpetitions and Mr. I.Paul Nobel Devakumar, learned GovernmentAdvocate (Crl.side) representing the respondent. The materialsavailable on record were also perused.7. It is a fact admitted on behalf of the respondent that, inthe report of the Deputy Registrar under Section 81 of the TamilNadu Co-operative Societies Act, 1983, the petitioners herein werenot found fault with for the alleged loss caused to the Co-operative Society. It is also a fact which is not in dispute thatthe First Information Report was registered against other personsalone and the petitioners in these petitions were not shown asoffenders therein and that only in the final reports , they havebeen shown to be the persons, who also committed the offence ofabetting the other offenders to commit the offence punishable underSections 408, 409 and 477-A I.P.C. An allegation has also beenmade in the final reports that there was a conspiracy, pursuant towhich the said offences were committed and hence they are chargedwith the above said offences read with section 120-B and 109 I.P.C.The main allegation based on which the petitioner inCrl.O.P.Nos.3941 and 3915 of 2007 viz., Ramesh has been implicatedin C.C.Nos.255 of 2003 and 256 of 2003 as per the concerned finalreports, is as follows:"He is responsible for the maintenance of the Day bookwhen writing the Day book he has to verify the cotton salebill, delivery challan etc., If there is any sale amountnot paid, he has to report the same to the superiorofficers without making any entry in the Day book, aftermaking the correct entries in the Day book he has to obtainthe signatures of the Secretary, Assistant Secretary and https://hcservices.ecourts.gov.in/hcservices/ Branch Manager in the Day book"The very same allegation is made against Subramani, the petitionerin Crl.O.P.No. 3916 of 2007 filed against C.C.No.254 of 2003. Atthe cost of repetition, the concerned allegation is extractedherein:"Accused No.5 is responsible for the maintenance ofthe Day book. When writing the Day book he has to verifythe cotton sale bill, delivery chalan etc., If there isany sale amount not paid, he has to report the same to thesuperior officers without making any entry in the Daybook, after making the correct entries in the Day book hehas to obtain the signatures of the Secretary, AssistantSecretary and Branch Manager in the Day book"8. From the above, it is quite obvious that the petitionersare sought to be held liable on the sole ground that they were thepersons shouldering the responsibility to write the Day book andfor any incorrect entry in the Day book regarding the sale bill,Delivery challan etc., they were accountable. On the other hand,it is the contention of the learned counsel for the petitionersthat the above said allegation has been made totally ignoring thebye-law which casts the responsibility of maintaining the Day bookon the Secretary and that the cashiers affix their signatures onlyto authenticate the entries made in the Day book regarding theincoming or outgoing cash through them. 9. In support of his contention, the learned counsel for thepetitioners drew the attention of the Court to the Bye-laws ofKrishnagiri Taluk Agricultural Producers Marketing CooperativeSociety. It says that the Cashier should work under the control ofthe Branch Manager;that there shall be double lock method for thesafety of the cash; that the Cashier is jointly responsible for thesafety of the cash and that the Cashier is responsible for thedaily cash incoming and outgoing and also for bringing the cashfrom the Bank and distribution of the same. It is the furthercontention of the learned counsel for the petitioners that theCashiers are expected to make entries regarding the cashtransactions and in order to authenticate the said entries alonetheir signatures are affixed and that the entire responsibility ofmaintaining the Day book is on the Secretary or Branch Manager, asthe case may be. It is also the further contention of the learnedcounsel for the petitioners that the Cashiers do not have anyauthority to sell cotton to the cotton merchants and on the otherhand, it is the responsibility of the Branch Manager or Secretary,as the case may be; that as per Bye-law 6(2) relating to auctionsale in the Co-operartive Society, only members are permitted totake part in the auction; that the merchants whose names areapproved by the Executive committee of the Co-operative Societyalone shall be allowed to purchase cotton on credit basis and thatsuch merchants who take delivery of cotton on credit basis shouldmake payment within thirty days and on failure, no further creditshould be allowed to such merchant. The learned counsel for thepetitioners further pointed out that the question of allowing a https://hcservices.ecourts.gov.in/hcservices/ merchant to take part in the auction and get cotton supplied oncredit basis is with the Executive Committee of the Co-operativeSociety and the Cashiers do not have anything to say in suchmatters. 10. It is also the contention of the learned counsel for thepetitioners that the Cashiers do not have the responsibility andthey are not expected to verify the stock in trade, the cotton soldon credit etc.; that they are the responsibilities of the BranchManager or the Secretary, as the case may be; that the entries inthe Day book regarding such supply of cotton from the Co-operativeSociety or the cotton brought to the Co-operative Society shall bemade by the Branch Manager or Secretary himself and that thepetitioners being Cashiers, cannot be found fault with for anyfalse or wrong entry, in this regard , made in the Day book. 11. On the other hand, it is the contention of the learnedGovernment Advocate (Crl.side) that the petitioners being Cashiers,who have access to the Day book, could have verified thecorrectness of the entries made therein, not only regarding thecash inflow and outflow, but also regarding the cotton brought tothe Cooperative Society and cotton supplied by the Co-operativeSociety to the merchants; that any discrepancy found therein oughtto have been noticed by them and the same should have beenintimated to the higher officials and that since the petitionersfailed to do so, there is every reason to believe that they werealso acting in connivance with other accused persons. It is thefurther contention of the learned Government Advocate (Crl.side)that despite the fact that Sri Karthikeya Cotton Merchants, Kallaviand Selvanayagi Gin and Press Private Limited, Kolinchivadi,Dharapuram were defaulters, the Society continued to supply cottonto the said merchants on credit basis and in order to suppress thesaid fact, false entries have also been made, as if cotton worthRs.17,67,078/- was redelivered by Sri Karthikeya Cotton Merchants,Kallavi to the Society and the same was sold to one RamasamyChettiar. 12. It may be true that such erroneous or false entries couldhave been made. But, this Court is at a loss to understand how thepetitioners who are cashiers, are held responsible for suchentries made by the Branch Manager or Secretary concerned. Fromthe Bye-Laws, it is clear that the Cashiers are responsible forthe entries regarding cash transactions alone. The stockverifications, receipt of cotton by the Society and the supply ofcotton from the Society to the merchants are not within the controlof the petitioners who are Cashiers. Therefore, this Court is ofthe considered view that the petitioners, have been implicated onlyon assumption and surmises that without their connivance, theSecretary, Branch Manager or other accused persons could not havecommitted the offences alleged against him. Such a prosecutionbased on surmises and suppositions, is obnoxious and cannot besustained. https://hcservices.ecourts.gov.in/hcservices/

13. For all the reasons stated above, this Court comes to theconclusion that there is no material, whatsoever, to prosecute thepetitioners for the offences alleged against them in the respectivecalender cases and hence the criminal prosecution launched againstthem in C.C.Nos. 255 of 2003, 256 of 2003 and 254 of 2003 areliable to be quashed. This Court hasten to add that no opinion isexpressed regarding the allegations made against the other accusedpersons.14. In the result, these Criminal Original Petitions areallowed and criminal proceedings initiated against the petitionersin C.C.Nos.255 of 2003, 256 of 2003 and 254 of 2003 are quashed.Sd/Asst.Registrar/true copy/Sub Asst.Registrar gpaTo1. The Inspector of Police CIW/CID Dharmapuri Unit2. The District Munsif-cum-Judicial Magistrate Pochampalli3. The Chief Judicial Magistrate, DharmapuriCopy to:The Section Officer, Criminal Section, High Court, Madras. 3 ccs To M/s.Sai, Bharath and Ilan., Advocate, SR.65467Crl.O.P.Nos.3914 to 3916 of 2007NSM(CO)sra 15/09/2010