A. Chidambaram vs State

M. Karpagavinayagam, J.—Petitioner Chidambaram, arrayed as A3, has filed this revision challenging the order dated 20.12.1996 passed

by the learned First Additional District Judge, Coimbatore, in Crl.M.P. No. 366 of 1996 in Spl.C.C. No. 25 of 1995 on his file, dismissing the

petition filed by the Petitioner for discharge u/s 239 of the Code of Criminal Procedure.

The Respondent filed the charge-sheet against the Petitioner and two others, alleging that A1 Meyappan, A2 Chandragiri and A3 Chidambaram

the Petitioner herein, during the period between 19.11.1990 and 20.12.1990 entered into a criminal conspiracy and in pursuance of the said

conspiracy, they misappropriated a sum of Rs. 1,24,800/- from the Fort Branch of Indian Bank, Salem, and thereby they committed the offences

punishable u/s 120-B read with Section 409 of the India Penal Code and Section 13(2) r/w Section 13(1 )(c) and (d) of the Prevention of

Corruption Act.

Mr. N.T. Vanamamalai, Senior Counsel appearing for the Petitioner, while pointing out the illegality committed by the trial Court in the

impugned order dismissing the petition filed for discharge, would contend that there is no iota of evidence against the Petitioner either with regard

to the conspiracy or with regard to his participation in any manner in the commission of the other offences as the statements of the witnesses and

the documents accompanied along with the charge-sheet do not disclose even a semblance of material with reference to the above referred to

accusation. He would further contend that even during the course of investigation since there was no material against him, no departmental action

was taken and he was allowed to retire on 31.7.1993 on attaining superannuation and that though it was alleged that the offences committed by the

Petitioner as a public servant while he was in service, there is no sanction obtained and that the cognizance taken by the trial Court with reference

to the offences alleged against him would not be valid in law.

Mr. P. Rajamanickam, Special Public Prosecutor appearing for the Respondent, arguing contra, would strenuously contend, that there are

materials sufficient to frame charges against the Petitioner and that no sanction is necessary for prosecution as against the Petitioner since on the

date of taking cognizance, the Petitioner ceased to be public servant. In support of the said contention, learned Special Public Prosecutor, filed a

counter. Thereafter, the counsel for the Petitioner filed a rejoinder refuting the allegations contained in the counter.

At the outset, I may mention that the contention urged by Mr. N.T. Vanamamalai, learned Senior Counsel, appearing for the Petitioner as

regards sanction, may not be right, in view of the fact, that admittedly, as pointed out by the Special Public Prosecutor, the Petitioner was not a

public servant on the date on which the trial Court took cognizance of the offences since the Petitioner was allowed to retire as early as on

31.7.1993 on attaining superannuation, that is, long prior to the filing of the charge-sheet. There is no necessity to obtain the sanction when the

accused ceases to be a public servant on the date of the filing of the charge-sheet.

Furthermore, it is significant to note that as far as the offences under the Indian Penal Code are concerned, it is the settled law, that

misappropriation and other allied offences could not be said to be the acts committed in the discharge of the official duties, as laid down by the

Supreme Court. Therefore, I fully accept the contention of the Special Public Prosecutor appearing for the Respondent with reference to the point

of sanction.

At this stage, I shall mention another curious thing. In the order passed by the trial Court while dismissing the application u/s 239 of the Code, it

has been observed that sanction had been obtained for the Petitioner also and the same has been filed along with the charge-sheet. This is factually

incorrect. I need not go in deep with reference to the above observation since I am of the view that no sanction is necessary in this case as against

the Petitioner.

As regards the first contention urged by the learned Senior Counsel that there is no material whatsoever against the Petitioner to frame the

charges by the Court, as pointed out earlier, the Special Public Prosecutor, would submit that there are materials.

Both the counsel would cite various authorities by this Court as well as by the Apex Court, in order to establish their point of view with

reference to the powers of the Court in the matter of discharge. Therefore, before delving deep into the materials available in this case in order to

find out whether those materials are sufficient to frame charges, let me refer to the authorities cited by the counsel for both, in order to understand

the scope of discharge as contemplated u/s 239 of the Code of Criminal Procedure.

10(a) While dealing with the powers of discharge of a Sessions Judge, with reference to Sections 227 and 228 of the Code of Criminal Procedure,

the Supreme Court, in State of Bihar Vs. Ramesh Singh, , has observed as follows:

Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial,

the truth, veracity and effect of the evidence which would give some materials as against the Petitioner. According to the said Chinnannan,

Petitioner made an entry on 4.1.1991 that there was no shortage though there was a shortage found out by witness Balraj on 20.12.1990,

21.12.1990 and 22.12.1990 in the presence of the Petitioner. So, on the strength of the statement of the witness stating that these entries are false,

now the counsel for the Respondent would vehemently contend that it must be presumed that Petitioner also participated in the conspiracy. I am

not able to agree with the contention of the learned Public Prosecutor for this reason: The entry made by the Petitioner on 4.1.1991 stating that

there was no shortage cannot be linked to the act of misappropriation by Al with the assistance of A2, committed prior to 18.12.1990.

No doubt, it is true, the entries may be factually incorrect. Similarly, the said witness Chinnannan has stated in his very same statement as

follows:

I admit that I should have been careful to see that the shortages were mentioned in the respective Bin Books.

So, the act of making wrong entries and the failure to mention the shortages in the respective Bin Books could be attributable not only to A3 but

also to Chinnannan, who is the prosecution witness.

It is also relevant to note in this context, as pointed out in the rejoinder filed on behalf of the Petitioner by the learned Senior Counsel,

according to the statement of Balraj, Inspector of Branches, one of the prosecution witnesses herein, who inspected the currency chest of the

Indian Bank, Fort Branch, Salem, and unearthed the fraud committed by A1 with the assistance of A2, would say, that the entire amount of Rs.

1,24,800/- was made good by A1 on 2.1.1991 itself. So, in view of the above statement, in my view, no significance could be attached to any

entry made by any person thereafter. Except this statement of Chinnannan, with reference to the alleged wrong entries made by the Petitioner on

4.1.1991, in which, he himself admits his own fault of not mentioning the shortages in the Bin Books, there is nothing to show that the Petitioner is

involved in the crime committed by the other accused.

As pointed out earlier, if there is strong suspicion, it could be said that the Magistrate is well within his powers to frame charges against the

accused. But in this case, on perusal of the statements of the witnesses and the documents, I am of the considered opinion that there is not even a

suspicion as against the Petitioner. Merely because he joined on 18.12.1990 and he was having the key for two days, it cannot be contended that

he was a party to the criminal conspiracy, in pursuance of which, the offences have been committed, even according to the prosecution, prior to

18.12.1990.

Therefore, the impugned order by which the application filed by the Petitioner u/s 239 of the Code of Criminal Procedure, was dismissed has

become liable to be set aside.

Accordingly, the revision is allowed. The impugned order passed by the First Additional District Judge, Coimbatore, in Crl.M.P. No. 366 of

1996 in Spl.C.C. No. 25 of 1995 dated 20.12.1996 is set aside and the Petitioner (A3) is discharged. Consequently, Crl.M.P. 1270/1997 is

dismissed.