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R.S.Shrinivasan-vs-State Rep. By on 1 June, 2011

Madras High Court R.S.Shrinivasan-vs-State Rep. By on 1 June, 2011

DATE: 01/ 06 /2011

CORAM:

THE HON’BLE MR.JUSTICE C.S.KARNAN

CRIMINAL ORIGINAL PETITION NO.10745 OF 2011 &

M.P.No.1 of 2011

R.S.Shrinivasan .. Petitioner

Vs.

1.State rep. by

Deputy Superintendent of Police,

Vigilance and Anti corruption Department,

Namakkal.

2.K.Shanmugam .. Respondents

PRAYER: Criminal Original Petition filed under Section 482 of the Code of Criminal Procedure, to call for entire records in respect of Crime No.3/AC/2010 on the file of DSP AC, Namakkal and quash the same.

For Petitioner : Mr.D.Rajagopal

For Respondents : Mr.A.N.Thambidurai

For Public prosecutor (R-1)

Mr.V.Janarthanan (R-2)

– – –

O R D E R

The above Criminal Original Petition has been filed by the petitioner / first accused in Crime No.3/AC/2010 on the file of Deputy Superintendent of Police, Vigilance and Anti-Corruption Department / first respondent herein.

2.The averments in the First Information Report are as follows:-

On 12.07.2010, at around 08.00 a.m., the defacto-complainant namely, K.Shanmugam S/o Kandasamy, teacher of T.Nallakoundam Palyam lodged a complaint against the petitioner / first accused and second accused namely, Subramanian, stating that the petitioner / first accused had demanded a sum of Rs.1,50,000/- for doing a favour to him. The F.I.R. further disclosed that there was a dispute amongst one Mr.Sheik Navith, one Mr.Veeramalai, Ex.Village President, Valliampatti, Mr.Kailasam of Namakkal, one Mr.Arokiaraj, Nagappattinam and one Mr.Balaguru, Deputy Secretary, Karur District regarding poultry farm, which is situated at Seviturengampatti. Regarding the said dispute, a Criminal Case was registered in Crime No.342 of 2010, dated 07.07.2010, for an alleged offence under Section 506(2) and 406 of Indian Penal Code, on the file of Mohanur Police Station, against Mr.Sheik Navith and the defacto complainant, Mr.K.Shanmugam and one Ravi. For resolving this issue, the Ex.Valliampatti Village President, Mr.Veeramalai spoke with the Inspector of Police, who was the Investigation Officer attached to the Mohanur Police Station. He, in turn, asked the defacto complainant to meet the Deputy Superintendent of Police, i.e., the petitioner herein, to sort out the issue. On his instructions, the defacto complainant, one Mr.Balaji, a Councilor and Ex.Alanganattan Village President, Mr.Vijayakumar, went to the petitioner’s office, Namakkal. The petitioner told the defacto complainant to come along with Sheik Navith and also pay a sum of Rs.1,00,000/- to one Subramani, who is the second accused in the said case. Out of this amount, Rs.50,000/- was to be paid to the petitioner through the second petitioner (second accused). The amount of Rs.50,000/- was paid on 09.07.2010 at around 07.30 p.m., by one Mr.Selvam, who is the friend of the defacto complainant. On that day, the defacto complainant was at Chennai to move an anticipatory bail before this Hon’ble Court.

3.Aggrieved by the said criminal case in Crime No.3/AC/2010 u/s 7 & 12 of PC Act 1988 and Sec.7/12 and 13(2) r/w 13(1)(d) of PC Act, 1988, now on the file of Deputy Superintendent of Police, Anti Corruption Namakkal, the petitioner has filed the above petition to quash the same.

4.The learned counsel for the petitioner has raised various grounds in the quash petition and also submitted written arguments and citations in support of his case. The learned counsel for the petitioner submits that the petitioner has an unblemished service record in his 37 years of service. He has received 245 rewards from from the State Government including Uthamar Gandhi medal and Hon’ble Chief Minister’s gold medal for excellent investigation and service. The learned counsel has raised the following legal rounds:- (i)The petitioner begs to submit that he has been working in the Police Department from 15.04.1974 and he has completed 37 years of unblemished service in the Department. Throughout his service he discharged his duties without any adverse remarks. Often the superiors in the Department appreciated his service. Appreciating his service he was conferred to 245 rewards by the Government of Tamilnadu including Uthamar Gandhi Medal and Chief Minster’s Gold Medal for excellent investigation and honest service. He never obtained any Memo for misconduct or indiscipline throughout his career. Further he never obtained any illegal remuneration or gratification at any point of time. He has not even received any memo from the Department. Presently he is working as Deputy Superintendent of Police of Namakkal Sub-Division (now he is under suspension). (ii)It is submitted that under the petitioner’s direction a case was registered in Crime No.26 of 2010 of Erumapatti Police Station for the offence under Section 294(b) 323 under 506(22) I.P.C. against one advocate named Anbarasan who assaulted one Srinivasan. Further a case was registered in Crime No.226 of 2010 of Erumapatti Police Station for the offence under Section 262, 147, 148, 294(B), 427, 323 and 307 I.P.C., against another advocate named Manikandan who was a main person in the riot of the Varahoor Vinayakar’ temple festival and stabbed one person. Then the said advocate was arrested and remanded. (iii)It is submitted that on 12.07.2010 one Subramani (second accused) who is working as a clerk under Advocate Sundaram came to petitioner’s house to give food to his son, who is looking after the petitioner’s house. On that day the said Shanmugam came to the petitioner’s house to see Subramani to hand over money to the Advocate Sundaram, through Subramani, towards advocates fees for obtaining bail and other expenses. This was not known to the petitioner. At 2.45 p.m., when the petitioner came to his house, immediately after entering into the house. The Vigilance and Anti-Corruption Department officials came and entered into the petitioner’s house and arrested the petitioner and the said Subramani. The petitioner explained to the Vigilance and Anti-Corruption Department officials that he was in no way connected with the said amount and he had not demanded any amount from the said Shanmugam. The second accused Subramani has also explained the Vigilance and Anti-Corruption Department officials that the money given by Shanmugam was for legal fees for his advocate and that the petitioner has nothing to do with the said transaction. Inspite of the explanation given by the Subramani the Vigilance and Anti-Corruption Department official did not hear the same and arrested the petitioner and Subramani and remanded them before the Court. (iv)It is submitted that the contents of the F.I.R. is as follows:-

On 12.07.2010 the defacto complainant Shanmugam went to the respondent’s office and informed the respondent that a case was registered against him, one Sheik Navith and one Ravi in the Mohanoor Police Station in Crime No.342 of 2010, that in connection with the said case, the defacto complainant went to D.S.P. Office in order to sort out the problem. When he met the D.S.P., he demanded Rs.1,00,000/- to solve the issue. Subsequently, on the same day evening, he has given Rs.1,00,000/- to D.S.P., through Subramanian and then Rs.50,000/- was paid through his friend Selvam. Again the D.S.P. demanded Rs.2,00,000/- (Rupees Two Lakhs only) even after that they have demanded Rs.1,50,000/- to settle the issue and for excluding him from the case. So he does not want to give the amount and he had decided to give the complaint to the respondent. These are all the contents of the complaint. On the basis of the complaint given by the defacto complainant a case was registered in Crime No.3/AC/2010 for the offence u/s. 7 and 12 of the prevention of corruption Act and subsequently a Magazar prepared and trap was conducted.

5.The learned counsel further argued that trap cases should not be registered by the Director of Vigilance and Anti Corruption against public servants falling under the Groups A, B, C and D without obtaining the prior permission of the Vigilance Commissioner. When a Magistrate orders investigation into a Corruption complaint under Section 156(3) of the Cr.P.C., no such prior permission of the Vigilance Commissioner need be obtained. Lodging a First Information Report, without enquiry, against an officer occupying a top position in a Department would do incalculable harm not only to the Officer in particular but to the Department he belongs to, in general. The registration of an F.I.R and alleging of laying of the trap when the petitioner did not receive the alleged money and the way the F.I.R had been registered and investigation has begun are all in flagrant violation of the rule of law. The second accused, is working as an Advocate’s Clerk under one Mr.Sundaram, Advocate and the second accused is a third party, who does not work under the petitioner’s or related to him in any way. On the day of the alleged offence, the defacto complainant had handed over the money to the second accused/Advocate’s Clerk to mete out the Court expenditure, Senior Advocate fees, Junior Advocate fees and miscellaneous expenditure etc., the second petitioner does not have any special power vested with him to do any favours to the defacto complainant. It is crystal clear that the defacto complainant and his friend are involved in the criminal case in Crime No.342 of 2010 for which one Mr.Sundaram has been engaged for providing legal assistance. The second accused, being an Advocate’s clerk had extended his services as a Clerk to the defacto complainant. He is an employee under the Advocate and with the permission of his advocate, he has received the money. In support of this contention, the learned Advocate has also filed an affidavit in the above said Criminal Original Petition. The learned counsel further argued that there has not been any voluntary demand for money or acceptance of money by the petitioner for using his police power in favour of the defacto complainant. Actually, the said case is pending on the file of Investigation Officer / Inspector of Police, attached to the Mohanur Police Station. The petitioner is a superior officer. He does not have any power to interfere with the criminal proceedings which is being dealt with by the Inspector of Police. The petitioner is the immediate superior officer of the Investigation Officer. As such, the petitioner does not have any power to close the Criminal Case.

6.The learned counsel further argued that the defacto complainant lodged a complaint against the petitioner on the instigation of politicians and some influential persons in order to take revenge against the petitioner, for not doing any favours for them in the past. The learned counsel further argued that the defacto complainant has also filed a detailed affidavit and narrated the entire facts of the case and had also categorically admitted that he lodged the complaint against the petitioner on the instigation of others and that the said complaint had not been voluntarily given.

7.The learned counsel for the petitioner further argued that the petitioner had joined in the Police Department in the year 1974. He is from an agricultural family and he hails from a most backward area. He is the only person from his family to attain this high position, after putting in 37 years of sincere and honest service. Due to malafide intention, the case was registered against him and he had been arrested and remanded into Judicial custody which is a slur on his reputation in the Police Department as well as that of the public and his local residential place. The case had been levelled against him with malafide intentions and to defame him which would amount to irreparable hardship to the petitioner. Hence, the learned counsel prays that the petitioner shall be compensated by way of being reinstated to his original position and to extend his service for a suitable period of time, in order to set right his image in the Police Department as well as that of the public.

8.The learned counsel for the petitioner has cited the below mentioned citations in support of his case;

(i)Sundar Babu and others v. State of Tamil Nadu Arijit Pasayat reported in 2009 INDLAW SC 1971

Criminal code of Criminal Procedure, 1973 s. 482 Indian penal Code, 1860, s.498A-Quashing of proceedings Complainant filed against appellant No.1 alleging commission of offence punishable u/s.498A of IPC and s.4 of Dowry Prohibition Act, 1961 as he had left for USA leaving her Appellant No.1 filed application for quashing of proceedings contending that he had purportedly left for USA six months after marriage. Appellant No.1 also contended that complainant has not offered any explanation for the delayed lodging of the complaint. HC accepted stand of prosecution that a bare perusal of complaint discloses commission of alleged offences and dismissed application. Hence, present appeal Whether HC’s order could be upheld? Held, scope for interference u/s.482 is limited. Even a cursory perusal of complaint shows that case at hands falls within category (7) of illustrative parameters highlighted in Bhajan Lal’s case HC erred in dismissing petition u/s 482 of Cr.Pc.-Appeal allowed. (ii)Ashok Tshering Bhutia v. State of Sikkim reported in 2011 INDLAW SC 129

Criminal Prevention of Corruption Act, 1988, ss.13(2), 13(1)(e) Prevention of Corruption Act, 1947, Amassing wealth disproportionate to known sources of income Conviction Sustainability Appellant, Constable in Special Branch of State Police allegedly amassed assets disproportionate to his known sources of income. Trial Court convicted appellant u/s.13(2) r/w s.13(1)(e) of Act HC dismissed appellant’s appeal. Hence instant appeal (A) Whether FIR should be lodged without written order / direction of Superintendent of Police. Held, Officer had mentioned in FIR that he had orally been directed by Superintendent of Police to investigate case. Nothing on record to show that Officer’s statement was not factually correct. A direction was given by Superintendent of Police to officer concerned to investigate case Nothing on record to show that investigation had been conducted unfairly Investigation, therefore, would not be vitiated due to mere technicality of requirement of Superintendent of Police’s direction (B)Whether appellant’s electricity and telephone bills should be relied upon since said bills were not proved before Trial Court. Held, electricity and telephone bills had not been proved at time of trial. HC while hearing appeal remitted matter back to Trial Court to allow prosecution to prove said documents and in spite of giving full opportunity to prosecution witnesses, said bills were not proved Though it should be permissible in law to get formal approval of documents by adducing additional evidence, but it could not be relied upon judgments of courts below, therefore, suffered from a fundamental procedural error and amount shown in said bills should not be taken into account while computing appellant’s total income (c) Whether conviction recorded against appellant was sustainable Held, appellant’s unexplained income was significantly lower than what had been alleged by prosecution. Further, check period was very long and constantly, it was easily possible that a small over-estimation of appellant’s expenditure. Appellant entered into in service in 1972 and therefore was no break up so far as assets and expenditures etc. were concerned in charge sheet though check period covered both 1947 Act and 1988 Act. Even if said amount was spread over period from 1987 to 1996, alleged unexplained income remained merely a marginal / paltry sum which any government employee could save every year judgments and orders of courts below, therefore, could not be sustained in eyes of law and hence set aside Appeal allowed. (iii)Nikhil Merchant Versus Central Bureau of Investigation and another reported in CDJ 2008 SC 1430

Criminal Procedure Code Section 320, 482 Indian Penal Code, 1860 Section 120B read with Sections 420, 467, 468, 471A PREVENTION OF CORRUPTION ACT, 1947 Section 5(2), 5(1)(d), 13(2) read with Section 13(1)(d) High Court rejected the appellant’s prayer for discharge from the criminal cases Appeal The basic intention of the accused in this case appears to have been to misrepresent the financial status of the company, M/s.N.Limited, Mumbai, in order to avail of credit facilities to an extent to which the company was not entitled. In other words, the main intention of the company and its officers was to cheat the bank and induce it to part with additional amounts of credit to which the company was not otherwise entitled Despite the ingredients and the factual content of an offence of cheating punishable under Section 420 IPC, the same has been made COMPOUNDABLE under Sub Section (2) of Section 320 Cr.P.C. With the leave of the Court. Of course, forgery has not been included as one of the COMPUNDABLE offences, but it is in such cases that the principal enunciated in B.S.Joshi’s case (supra) becomes relevant In the instant case, the disputes between the Company and the Bank have been set at rest on the basis of the compromise arrived at by them whereunder the dues of the Bank have been cleared and the Bank does not appear to have any further claim against the Company. What, however, remains is the fact that certain documents were alleged to have been created by the appellant herein in order to avail of credit facilities beyond the limit to which the Company was entitled. The dispute involved herein has overtones of a civil dispute with certain criminal facets. The question which is required to be answered in this case is whether the power which independently lies with this Court to quash the criminal proceedings pursuant to the compromise arrived at, should at all be exercised. On an overall view of the facts as indicated herein above and keeping in mind the decision of this Court in B.S.Joshi’s case (supra) and the compromise arrived at between the Company and the Bank as also clause 11 of the consent terms filed in the suit filed by the Bank, are satisfied that this is a fit case where technically should not be allowed to stand in the way in the quashing of the criminal proceedings, since, the continuance of the same after the compromise arrived at between the parties would be a futile exercise. Therefore, set aside the order passed by the High Court dismissing the petitioner’s revision application No.49 of 2003 in Special Case No.80 of 1998 and quash the proceedings against the appellant. The appeal is accordingly allowed. (iv)Crl.O.P.No.29815 of 2004 and Crl.M.P.No.9365 of 2004, P.S.Shenoy vs.G.Krishnamurthy on 30 September, 2008

It is relevant to refer the decision of the Hon’ble Apex Court in B.S.Joshi and others v. State of Haryana and another, 2003 Supreme Court Cases (crl) 848 and the Hon’ble Apex Court in this decision has relied as follows:

If for the purpose of securing the ends of justice, quashing of FIR becomes necessary, Section 320 would not be a bar to the exercise of power of quashing; It is however, a different matter depending upon the facts and circumstances of each case whether to exercise or not such a power. Thus, the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code.

9.The learned Additional Public Prosecutor argued that a phenolphthalein test was conducted on the hands of the second accused and on his confessional statement, the first accused was roped in the corruption case. It is an admitted fact that the petitioner has been awarded several rewards by the Government, but this cannot be a criteria for challenging the criminal case. On the basis of the defacto complainant’s complaint, the case was registered against the accused. After registration of the complaint, necessary proceedings were followed and both the accused were arrested. Now, the defacto complainant has become a hostile witness and some other witnesses have also become hostile, even then, the prosecution can establish their case against the accused. The learned counsel further argued that the money had been received by the second accused in the place of the first accused. There is no evidence to prove that the defacto complainant had lodged the complaint on the instigation of others. The defacto complainant need not pay the advocate fees to the second accused / advocate clerk since the legal service has been rendered by the Advocate. The petitioner had asked the defacto complainant whether he had brought the money, as demanded by him. At that time, A2 was nearby him. On the direction of A1, the amount was paid by the defacto complainant to A2. A2 had also received the said money and kept it on the dining table. So, everything was done on the demand and direction of the first accused. As such, the first accused squarely comes under the purview of the criminal case. It is an admitted fact that there is a dispute between one Mr.Sheik Navith, who is the friend of the defacto complainant and one Mr.Kailasam and others, regarding poultry farm. The said Kailasam sold the poultry farm to one Mr.Arokiaraj. Regarding the civil dispute, a case is also pending before the Civil Court, Namakkal. The learned counsel further contended that on 07.07.2010, between 11 to 12 hours, the petitioner asked the defacto complainant, in the presence of one Balaji and Vijayakumar to bring Rs. 1,00,000/- and also to come along with Mr.Sheik Navith. On the same day, the petitioner assured the defacto complainant that he would solve the problem amicably. The learned counsel further submitted that the phenolphthalein test was conducted on both the hands of A2 and the test results were positive. Phenolphthalein test was not conducted on the hands of A1 as he has not handled the money. The phenolphthalein test solution was sent to Forensic Science Department which revealed that phenolphthalein was deducted in all three test solutions. Now, a report had been sent to the Government, seeking sanction of prosecution against the petitioner. At this stage, the quash petition is not maintainable.

10.The learned counsel for the State has categorically admitted that the petitioner was not the investigation officer of Mohanur Police Station of Crime No.342 of 2010, but the petitioner had interfered and instructed the Inspector of Police to register a case. As such, the case was registered. The said bribe money of Rs.1,50,000/- was recovered from inside the house of the petitioner, wherein the money was kept by A2 on the direction of the petitioner in the presence of official witnesses. There is no impediment or discrepancy in the said criminal case. Therefore, the quash petition is not maintainable.

11.Per contra, the learned counsel for the petitioner argued that a criminal case was registered against the defacto complainant regarding the dispute over the poultry farm. Besides, a civil suit is also pending over the poultry farm. In the meantime, the rival party, Mr.Kailasam had sold the poultry farm to and in favour of one Arokkiaraj. This is the factual position. At this juncture, the opposite parties looted the poultry farm and have tried to arrest the defacto complainant through police. To get over the problem and maintain his status, he had moved anticipatory bail before this Hon’ble Court. His normal life had been affected and he had lost his mental balance. Under the circumstances, the local politicians induced the defacto complainant to lodge a case against the petitioner to take revenge. As such, the false complaint was lodged against the petitioner. The same was categorically admitted and revealed to this Court by way of affidavit in the name of the defacto complainant. The main witnesses have become hostile. Further, the case was levelled against the petitioner with malafide intention. As such, the prosecution case has become weakened and baseless. The learned counsel for the petitioner further submitted that the defacto complainant had sent a detailed representation to the Home Secretary of the State stating that he is not interested in proceeding with the case against the petitioner. As such, he does not want to press the criminal charges against the petitioner. The copy of the representation has also been sent to the concerned authorities.

12.In view of the facts and circumstances of the case, arguments advanced by the learned counsels on either side and on perusing the ingredients of the F.I.R. and on going through the statements of the witnesses, this Court is of the considered opinion that:-

(i)The defacto complainant has filed affidavit in his name and disclosed that the case was levelled against the petitioner without application of mind.

(ii)The said bribe amount had not been received by the petitioner directly from the defacto complainant.

(iii)There is no material evidence or corroborative evidence to prove that the petitioner had demanded a sum of Rs.1,50,000/- from the defacto complainant to utilize his police power in order to close the criminal case in Crime No.342 of 2010 on the file of the Inspector of Police, Mohanur Police Station, since the petitioner is not the aurthorised police officer to close the said criminal case. He is only the immediate superior officer of the investigation officer. He cannot interfere with the enquiry and investigation of the investigation officer. (iv)The defacto complainant and other witnesses have become hostile. As such the prosecution case has become weakened and baseless.

(v)No phenolphthalein test had been conducted on the petitioner since he had not touched the said bribe amount. But the bribe amount had been recovered from the petitioner’s place from A2, who has come there to meet his son, who is working under the petitioner as private employee. As such A2 is an authorised person to enter into the petitioner’s premises. (vi)As per statement of the defacto complainant, initially a sum of Rs.50,000/- had been paid to the petitioner in installments on two occasions and the said bribe amount is the third installment. If it is true, the defacto complainant should have taken steps on the first occasion itself to inform the authorities. As he has not done this, the subsequent activities of the defacto complainant has been done with malafide intentions to satisfy the local politicians. (vii)As per the complaint, A2 had requested the defacto complainant for a sum of Rs.50,000/- to mete out his children’s educational expenses. As such, the A2 had not demanded this money as a bribe.

13.On the above mentioned aspects, this Court feels that this is a fit case for quash. Considering that the two principles, namely;

(a) To prevent abuse of the process of Court and

(b) necessary to secure the ends of justice, are applicable in the instant case. Therefore, this Court is inclined to quash the Criminal Proceedings in Crime No.3/AC/2010 on the file of Deputy Superintendent of Police, AC, Namakkal and as such the proceedings are quashed.

14.Resultantly, with the above observations, the above Criminal Original Petition in Crl.O.P.No.10745 of 2011 is allowed. Consequently, the Criminal Proceedings in Crime No.3/AC/2010 on the file of Deputy Superintendent of Police, Vigilance and Anti-Corruption Department, Namakkal in so far as the petitioner / A1 is concerned is quashed. Connected Criminal Petition is closed. r n s

Note to office:-

The Registry is directed to return the original records

to the concerned authorities.

To

1.The Deputy Superintendent of Police,

Vigilance and Anti corruption Department,

Namakkal.

2.The Public Prosecutor,

High Court,

Chennai

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