IN THE COURT OF JUDICATURE AT MADRAS DATED :16.02.2010 CORAM THE HONOURABLE MR. JUSTICE V.PERIYA KARUPPIAH Crl.O.P.No.26498 of 2008 and M.P.No.1 of 2008 A. Mohamed Thaheer ... Petitioner Vs. 1. State rep. by Station House Officer, Vigilance & Anti-Corruption Police Unit, Puducherry ... Respondent Prayer: This Criminal Original Petition is filed to call for the records and quash all further proceedings in Spl.C.C.No.1 of 2008 on the file of Additional District Court, Karaikal. For Petitioner : Mr.R. Chandrasekar For Respondents : Mr.T.Murugesan Senior Public Prosecutor Puducherry O R D E R This is a petition filed by the 1st accused before the learned Additional District Judge, Karaikal in Spl.C.C.No.1 of 2008 seeking to quash the proceedings pending before the said court u/s.482 of Cr.P.C. 2. The important facts which are necessary for the disposal of the case would be as follows: (a). The petitioner is the 1st accused before the learned Additional District Court, Karaikal in Spl.C.C.No.1 of 2008. A complaint was lodged by one Dr.R. Sathiyaseelan, Additional Director of Agriculture, Puducherry on 28.09.2004 just 48 hours before the petitioner's retirement on superannuation, an F.I.R was registered in Cr.No.7/2004 against the petitioner under sections 420 r/w 34 I.P.C and under section 13(1)(c) r/w13 (2) of Prevention of Corruption Act in Puducherry (VAC) Police station. The allegation against the petitioner is that he had made double claim towards the https://hcservices.ecourts.gov.in/hcservices/ repair charges and purchase of compressor and its accessories of an AC machine received from PASIC, branch office, Karaikal on loan basis to install in his office room leading to misappropriation of Government money. (b) The complaint was made in the year 2004. The alleged offence took place during the period 27.03.2001 to 12.04.2001. The charge sheet was filed on 07.05.2008 after a long delay of 7 years. A perusal of the complaint and the charge sheet would show that it is frivolous and does not disclose any offence. The facts as revealed by the charge sheet and the statements annexed are as follows: "An AC machine was purchased for the office use of the Joint General Manager of Puducherry Agro Service & Industries Corporation (PASIC) on 07.08.1999 from the Associated Marketing Agencies, Karaikal. While so on 10.02.2000 the said AC machine was installed in the office of the Additional Director of Agriculture (when the petitioner as occupying the said post) on loan basis at by the Managing Director, PASIC, Puducherry." (c) During the month of March 2001, the said AC machine needed repairs and the same was informed to the PASIC, Puducherry. In the meantime, the machine was sent to the M/s.Naachia stores, Karaikal and the same was repaired by them. The payment to M/s. Naachia Stores, Karaikal was paid by the Deputy Director of Accounts and Treasuries, Karaikal branch, directly through cheque dated 31.03.2001 for Rs.11,255/-. (d) In April 2001, Deputy Manager,Mr.Masthan had sent one Maharajan, Plant Supervisor, PASIC, Karaikal, to repair the AC machine in the Agricultural department, Karaikal which was not working. The said Maharajan went to the M/s. Naachia Stores and requested its Proprietor, Mr.Noorul Amin, to send quotation for replacing the compressor and its accessories in the 2 ton assembled window AC machine. Mr. Noorul Amin refused to repair the AC until the quotation amount was paid as advance to them. Thereafter, amount of Rs.11,555/- was paid to the M/s. Naachia Stores, Karaikal as advance by the PASIC, Karaikal. (e) There was no communication from the PASIC to the Additional Director of Agriculture, Karaikal that the sum has been advanced to the M/s. Naachia Stores to carry out the repair in the AC machine. Despite the payment made by the PASIC no AC machine was sent to the M/s. Naachia stores for repair. On 27.06.2002, M/s. Naachia Stores, Karaikal has returned the amount to the PASIC stating that no AC machine was sent to the shop for repair, despite several letters sent by M/s. Naachia Stores requesting PASIC to send the machine for https://hcservices.ecourts.gov.in/hcservices/ repair. (f) There is no misappropriation of any amount by the Petitioner admittedly. PASIC has inadvertently paid the amount to M/s. Naachia Stores. There is no communication to show that the petitioner has induced the officials of the PASIC to sanction second claim for the single repair. There is no material showing that the petitioner had any knowledge of the second transaction between PASIC and M/s. Naachia Stores. As such no offence is disclosed and the proceedings are a clear abuse of process of court. It is just and necessary that the proceedings should be quashed, failing which the petitioner would be put to needless harassment and irreparable injury. The proceedings amount to abuse of process of court and are also tainted by malafides, particularly malice in law and hence need to be quashed to serve the ends of justice. 3. The respondent would contend that the VAC unit registered the case in Cr.No.7/2004 on the directions of the Chief Vigilance Officer, Puducherry against the petitioner as A1 and two other Government officials namely Adaikalasamy, the then JAO (A2) and V.T. Thararaiselvam the then Supdt. (A3) of the office of the Additional Director of Agriculture, Karaikal for a case of double claim made towards the purchase of spares for an AC machine received from PASIC, Karaikal on loan basis and the investigation was done and the charge sheet has been filed against the three persons u/s. 420 r/w 34 I.P.C and u/s. 13(1) (c) r/w 13(2) of the Prevention of Corruption Act, 1988. 4. The petition filed by the petitioner to quash the charge sheet is nothing but a delaying tactics without co-operating the trial proceedings before the Special Court, Karaikkal. The petitioner who was working as the Additional Director of Agriculture, Karaikal was well aware of the AC machine entrusted with him on loan basis belongs to PASIC, Puducherry and any repairs or settlement of bill should have been undertaken by the PASIC only, but the petitioner had sent the machine to one M/s. Naachia Stores, Karaikal on his own accord and insisted A2 and A3 to settle the relevant bills from the office on 31.03.2001. However, he had also informed one Mr.Masthan, the Deputy General Manager of PASIC, Karaikal to settle the second bill bearing No.22771 dated Nil for an amount of Rs.11555/- toward M/s. Naachia stores, Karaikal for repairing of the AC machine by concealing the fact of earlier settlement done by him through the bill No.22696, dated 27.03.2001 for an amount of Rs.11,255/-. The said Deputy General Manager Mr.Masthan and another person namely Maharajan, plant supervisor of PASIC had informed that under the direction of the petitioner only they had ventured into the payment of the bills submitted by M/s.Naachia stores, for a sum of Rs.11,555/- as an advance payment for repairing the AC machine. The evidence collected by the respondent would show that the petitioner alone was responsible for https://hcservices.ecourts.gov.in/hcservices/ the 2nd payment made to M/s.Naachia stores for the same AC machine entrusted with him. The said connivance of other accused with the petitioner would implicate him in parting of Government money with the intention to misappropriate the same, which would amount to cheating the Government where the petitioner has to discharge his duties truthfully and honestly. 5. The petitioner had also filed a petition to quash the FIR registered in Cr.No.7/2004 in Crl.O.P.No.34832/2005 before this court and the same was dismissed by this court. Thereafter, investigation was conducted and the respondent found the case against the petitioner and two other accused made out and accordingly the final report has been filed with all the relevant papers and the statement of witnesses. The respondent has obtained necessary sanction before the Competent Authority and had filed the charge sheet for prosecuting the petitioner as well as other co- accused. The petitioner had presently filed this petition in order to delay the proceedings. There is no merit in his case. The respondent therefore request the court to dismiss the petition filed by the petitioner, since the reasons submitted by the petitioner for quashing final report have no merits. 6. Heard Mr.R. Chandrasekar, learned counsel for the petitioner and Mr. T. Murugesan, Senior Public Prosecutor, Puducherry for the respondent. 7. The learned counsel for the petitioner would submit in his argument that the charge sheet filed against the petitioner, implicating him as accused, is nothing but an abuse of process of court. He would submit that the case of the respondent is that the 1st bill was paid by the Additional Director of Agriculture of Karaikal on 31.03.2001 after the defects in the AC machine were repaired and the 2nd bill was obtained by PASIC as a quotation to replace the compressor and other parts of the AC machine and the same was sanctioned by PASIC inadvertently and paid on 17.04.2001 to the M/s. Naachia stores, without sending the AC machine for repair and therefore, there is no material to show that the petitioner made double payment for a single repair work. He would also submit that the petitioner did not send any letter to PASIC requesting them to settle the bill amount towards the replacement of accessories nor requested any person to clear the bill submitted by M/s. Naachia stores and therefore the petitioner was not responsible for the 2nd payment made by PASIC upon the bills submitted by M/s. Naachia stores. 8. He would again submit that the bill amount paid by the petitioner was on the basis of a separate bill for a sum of Rs.11,255/- for a bill amount for repair works carried out by M/s.Naachia stores and the payment made by PASIC for a sum of Rs.11,555/- towards the quotation, submitted by M/s. Naachia stores https://hcservices.ecourts.gov.in/hcservices/ in which no repairs were carried out. Both the transactions are different and the petitioner did not participate in the 2nd transaction and on the face of it no crime has been made out against by the petitioner and the entire charge sheet is liable to be quashed. He would again submit in his argument that the evidence of one Noorul Amin of M/s. Naachia stores would go to show that he had contacted PASIC for the payment of the amount on the basis of the quotation he had submitted and he sent another letter for sending the AC machine to carry out repairs. Since no machine has been sent to him, he returned the amount to PASIC and therefore, there cannot be any double payment and no crime of cheating or misappropriation had been done by any persons. He would also submit that the petitioner who did not participate in the 2nd transaction and is in no way connected with the 2nd payment and therefore the investigation conducted by the respondent should have been concluded exonerating the petitioner. 9. He would again submit in his argument that there was no nexus for the petitioner in the alleged crime of cheating nor u/s. 13 of the Prevention of Corruption Act. He would also draw the attention of the court to a judgment of Hon'ble Apex court reported in (2005) 12 SCC 631 K.R. Purushothaman v. State of Kerala for the principle that there should be some entrustment of property with the petitioner being a public servant and there must be a nexus to the alleged crime and thereby any valuable thing or pecuniary advantage has been received by him for attracting the person within the clutches of the said crime. He would further submit in his argument that the respondent did not gather any evidence regarding the pecuniary advantage nor any property entrusted with the petitioner for doing misappropriation or commission of cheating against the Government or public. Therefore, there is no necessity for spending time in conducting trial against the petitioner and all the proceedings in Spl.C.C. No.1/2008 on the file of Special court, Karaikal against the petitioner have to be quashed. He would again submit that the allegation against the petitioner that he fradulently misappropriated the said amount in connivance with Mr. Noorul Amin the proprietor of M/s. Naachia stores, Karaikal was not established through the investigation, since the said M/s. Naachia stores did not speak about the said connivance had by them with the petitioner. Apart from that the said amount paid by PASIC to the said M/s.Naachia stores was admittedly returned back by M/s.Naachia stores and therefore, there could not be any pecuniary benefit received by the petitioner through M/s.Naachia stores even if any connivance was deemed to have been established. Therefore, he would request the court that nothing survives against the petitioner u/s. 420 r/w 34 of IPC or u/s. 13(1) (c) r/w 13(2) of the Prevention of Corruption Act, 1988 and therefore the petition has to be allowed. https://hcservices.ecourts.gov.in/hcservices/ 10. The learned Senior Public Prosecutor would submit in his argument that the petitioner is the root cause for entire crime committed by him along with co-accused and misguided the officials of PASIC to part with the 2nd payment made for the same repair work of the same AC machine and the repayment by M/s. Naachia will not dilute the case against the petitioner. 11. Learned Senior Public Prosecutor would further submit that the petitioner had instructed the Manager of PASIC, Mr. Masthan to prepare and pass the bill for RS.11,555/- in favour of M/s. Naachia stores and out of the said payment it was decided by the petitioner to divide the money with the said M/s.Naachia stores and once the said payment is made for the 2nd time the commission of crime is completed and the repayment by the M/s. Naachia stores will not solve the situation. He would again submit in his argument that the evidence of the said Manager of PASIC, Mr.Masthan would clearly disclose the participation of the petitioner in the second payment and it has to be considered at the time of trial where the prosecution case has been rested on the said witness Mr.Masthan. He would also submit that apart from Masthan yet another witness namely Maharajan, plant supervisor of PASIC had also spoken about the instruction given by the petitioner to the Manager for preparing the bill and therefore the evidence gathered during investigation implicated the petitioner and it can be decided only by the way of trial. He would also submit in his argument that only in rarest of rare case, where there is no prima facie case is made out through the evidence collected during the investigation and the misapplication of law are found, the application of Section 482 can be ordered and so far as this case is concerned there is no circumstance to bring this case under the category of rarest of rare cases. Therefore, the petition filed by the petitioner to quash the proceedings has to be dismissed. 12. I have given anxious thoughts to the arguments advanced on either side. The important facts which have no controversy are that the petitioner was working as Additional Director of Agriculture in the Department of Agriculture, Puducherry. During the relevant period an AC machine was received by him from PASIC, branch office, Karaikal on loan basis for being installed in his office room. The said AC machine got repaired during the month of March 2001 and the said machine was sent to M/s. Naachia stores Karaikal and the said machine was repaired by them and a payment for a sum of Rs.11,255/- was paid through a bill prepared by the co-accused of the petitioner and signed by the petitioner and accordingly a cheque was issued in favour of the M/s. Naachia stores, Karaikal dated 31.03.2001 for a sum of Rs.11,255/-. The charges for the said repair was paid. However, the office of PASIC had also prepared a bill for a sum of Rs.11,555/- towards the advance sum on the basis of the quotation obtained from said M/s. Naachia stores and the bill prepared by the https://hcservices.ecourts.gov.in/hcservices/ said M/s. Naachia stores was also paid by the said PASIC, branch office Karaikal, even without the AC machine was repaired. According to the evidence collected by the Investigating Officer the said payment was made in advance for no repairs done by M/s. Naachia stores and therefore M/s. Naachia stores had returned the money, in favour of PASIC, branch office Karaikal. The said AC machine was not sent for repair. The point for consideration is whether this court can intervene with the investigation done by the respondent and found that there is no nexus for the petitioner in the crime and quash the proceedings as requested by the petitioner. 13. No doubt the evidence of M/s. Naachia stores would disclose that no repairs were done for AC machine during April 2001 for the 2nd time and therefore the amount paid by the PASIC was returned by him. However it was paid by the PASIC, branch office Karaikal from and out of the Government money. The evidence collected by the Investigating Officer from one Mr.Masthan, the Manager of PASIC would go to show that during the second week of April 2001 he received a bill No.22771 dated Nil along with quotations for replacement of compressor and other parts and service parts to the tune of Rs.11,555/- from M/s. Naachia stores, Karaikal, through the office of Additional Director of Agriculture, Karaikal and Mr. Tahir, Additional Director of Agriculture department (Petitioner) also informed him that the bill for the repair of AC machine to settle the amount to the said stores, since the said machine belongs to PASIC, Karaikal by concealing the fact that the bill which was prepared by his office for the above said service had already been settled to the tune of Rs.11,255/-. However as per the directions of the petitioner the amount of Rs.11,555/- was settled to Mr.Noorul Amin, Proprietor of M/s. Naachia stores, Karaikal on 11.04.2001 through a cheque bearing No.881719 of Canara Bank. This sort of evidence collected from Masthan would show that the 2nd payment made to M/s. Naachia stores was only at the instruction of the petitioner. At this stage, this court cannot go deep into the evidence given by the said Masthan and to find out whether his evidence is true or not. It requires a trial for deciding about the genuiness of his evidence given before the police when he was examined during investigation. 14. It is the judgment of Hon'ble Apex court reported in 1992 Supp (1) SCC 335 in between State of Haryana and others vs. Bhajan Lal and others guiding us in this aspect, in which it has been categorically laid down as follows: "103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in https://hcservices.ecourts.gov.in/hcservices/ embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice." As far as this case is concerned, the evidence given by the said Masthan has to be testified during the trial and thereafter only it could be decided as to whether the petitioner was involved in the crime or not. Therefore, the present case cannot be termed as one of the rarest of rare cases in which the court can exercise its inherent power conferred under section 482 Cr.P.C to quash the proceedings. 15. Therefore, the request of the petitioner to call for the records and quash the proceedings in Sp.C.C.No.1 of 2008 on the file of Additional District Court, Karaikal cannot be ordered and therefore, the petition filed by the petitioner for that purpose is liable to be dismissed. 16. Accordingly the petition is dismissed. The trial court is however directed to proceed with the trial of the case as expeditiously as possible and dispose the same preferably within a period of three months from the date of receipt of a copy of this order. Consequently connected miscellaneous petitions are also closed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar kpr To 1. Additional District Judge, Karaikal. 2. The Station House Officer, Vigilance & Anti Corruption Police Unit, Puducherry. 3. The Public Prosecutor, Puducherry. + 1 CC to M/s.P.V.S.Giridhar & Sai,Advocate,SR.10077 Crl.O.P.No.26498 of 2008 and M.P.No.1 of 2008. RB(CO) EM/20.4.10 https://hcservices.ecourts.gov.in/hcservices/