M. Surendran vs State <BR>State Vs M. Surendran

R. Mala, J.—The Criminal Appeal No. 430 of 2009 is directed against the Judgment of conviction and sentence passed by the learned Special District and Sessions Judge for CBI Cases, Madurai dated 18.12.2009 in C.C.No. 10 of 2004 under Section 420 of I.P.C.

The Criminal Appeal No. 301 of 2010 is directed against the judgment of acquittal passed by the learned Special District and Sessions Judge for CBI Cases, Madurai dated 18.12.2009 in C.C.No. 10 of 2004.

Since both the appeals are directed against the judgment passed in C.C.No. 10 of 2004 on the file of the learned Special District and Sessions Judge for CBI Cases, Madurai, a common judgment is passed.

The prosecution case in brief is as follows:

(i) A1 Anbalagan was working as Divisional Manager in the United India Insurance Company at Madurai from February 1997 to July 2000. The appellant/A2 Surendran was working as Assistant Divisional Manager. A3 Jayasankar and A4 R.Murugesan were the panel Advocates of United India Insurance Company. If any Motor Accidents Claim Petition filed by the claimant is referred for compromise before the Lok Adalat, the Divisional Manager has power to settle the matter in respect of quantum of compensation and he has to follow the guidelines issued by the Head Office of United India Insurance, Chennai in Circular No. H.O.:MOD:402:98 dated 30.11.1998 Ex.P16.

(ii) A2 Surendran was the Officer-incharge of Division No. 4 of Motor third party claim section in United India Insurance Company at Madurai. The nature of the duty of A2 is to prepare Motor T.P.Claim note on the basis of the documents and he has to obtain the opinion of Advocate in respect of the case also. A2 should be assisted for the Division Manager to verify each and every document.

(iii) A Motor Accidents Claim Petition in M.C.O.P.No. 2209 of 1999 was filed before the Motor Accidents Claim Tribunal, Madurai, Ex.P.2 series, claiming compensation by the claimant, which was taken on file by the Insurance Company in file No. 179 of 2000, Ex.P1 series. The claim petition has been filed relating to an accident occurred on 02.09.1999, wherein one Rajamanickam S/o.A.Paraman died by falling from the mudguard of the tractor bearing Reg.No. TN 58 C 6360 Swaraj 735 F.E., which was insured from the period 26.08.1999 to 25.08.2000 and the policy number is 090203/541/31/3470/99. A2 handed over the case to A3 who was the Panel Advocate on 28.01.2000 under Ex.P4. On 04.02.2000, A2 appointed one Damodaran, P.W.3 as Insurance investigator under Ex.P5 to file an enquiry report in respect of that case.

(iv) On 08.02.2000, P.W.3, Damodaran filed investigation report, Ex.P6 series. In that investigation report, it was stated that in the said tractor only one person can travel. But, to cause wrongful loss to the United India Insurance Company in the matter of paying compensation to the claimant in file No. 179 of 2000 in M.C.O.P.No. 2209 of 1999 on the file of Motor Accidents Claim Tribunal, Madurai, A1 to A4 entered into a criminal conspiracy and in the file No. 179 of 2000, A2 has written as "Permit Violation" and later he effaced the same, under Ex.P18. On 15.02.2000, A2 Surendran sent the report of Damodaran to A3 Jayasankar. Even on receipt of the same, A3 has not filed any counter statement. Since the deceased has travelled in the tractor as a stranger, the Insurance Company is not liable to pay compensation and there are violation of policy conditions and hence, the case is not fit to settling before the Lok Adalat. But, on 15.07.2000 A1 Anbalagan and A4 R.Murugesan filed a joint memo, Ex.P12 before the Lok Adalat settlement for Rs.76,000/- knowing fully well that the seating capacity on the tractor was only one person viz., the driver of the tractor was authorities to travel/drive the tractor and A2 Surendran noted in the said file "permit violation" and later dishonestly effaced the same and A3 M.Jayasankar dishonestly and fraudulently gave opinion under Ex.P14 that the Lok Adalat settlement was very reasonable and on 28.07.2000 A2 fraudulently prepared motor TP claim note and settled the claim without getting ratification by the Divisional incharge by abusing the official position of A1 and A2 and thereby caused wrongful loss of Rs.76,000/- to the United Insurance Company and hence, they committed the offence and based on the source information, P.W.11 N.P.Raju, Inspector of Police registered the case in R.C.1 A of 2003 against the accused on 13. 01.2003 under Sections 120(b) read with 420 of I.P.C., 420 of I.P.C. and Section 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988.

(v) As per the memo dated 25.02.2003, the Superintendent of Police take over the investigation and after getting proper permission from the Court and as per the search warrants Ex.P27 and 28, they prepared search list Ex.P29 and 30 and recovered documents from the residence of the accused. After due completion of investigation, he filed charge sheet against the accused for the offence as stated above.

The learned trial Judge after following the procedure, framed necessary charges against the accused. Since the accused pleaded not guilty, the Court examined P.Ws.1 to 13 and marked Exs.P1 to P34 and M.O.1 to M.O.9. Accused were questioned under Section 313 Cr.P.C. about the incriminating evidence and circumstances. Accused denied the same and stated that a false case has been foisted against them. No defence witness was examined on the side of the accused.

On considering the oral and documentary evidence, the learned Sessions Judge found the accused No. 2/appellant guilty under Section 420 of I.P.C. and and convicted and sentenced his as stated above. At the same time, he acquitted A2, A3 and A4 for the offence under Sections 120(b) read with 420 of I.P.C. and Section 13(2) and 13(1)(d) of Prevention of Corruption Act, 1988.

Challenging the conviction and sentence passed against A2 for the offence under Section 420 of I.P.C. Criminal Appeal (MD) No. 430 of 2009 has been preferred by A2. The trial Court, even though convicted A2 for the offence under Section 420 of I.P.C., acquitted A2 to A4 for the charges under Section 120(b) read with 420 of I.P.C. and Section 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988. Against which, the Deputy Superintendent of Police, CBI, Chennai has preferred Criminal Appeal (MD) No. 301 of 2010.

During the pendency of the trial itself, A1 died and hence, the charges against A1 was abetted and during the pendency of the appeal, A3 also died and hence, in respect of the second respondent/A3 in Crl.A.(MD) No. 301 of 2010, the appeal is hereby dismissed as abetted.

Challenging the conviction and sentence passed by the trial Court, the learned counsel appearing on behalf of the appellant in Crl.A.(MD) No. 430 of 2009 would submit that the appellant was the Assistant Divisional Manager and he had nothing to do with the commission of offence and he only referred the matter for settlement before the Lok Adalat. But, the trial Court, once come to the conclusion that A3 and A4 are not guilty, it ought to have acquitted the appellant also, since he was discharging his duty as he has referred the matter for Lok Adalat. The ingredients of Section 420 of I.P.C. has not been made out and that factum has not been considered by the trial Court and hence, he prayed for setting aside the same.

Resisting the same, the learned Assistant Solicitor General of India appearing for C.B.I. would submit that A2 preferred the list Exs.18 and 19 and Ex.P19 contained 20 cases and item Nos. 19 and 20 have been written by hand and that has been signed by the appellant/A2 and there is violation of policy condition, since the vehicle involved in the accident is a tractor, which is used only for agricultural purposes and no passenger is permitted to travel, whereas one Rajamanickam, a boy aged about 11 years was travelled in the mudguard of the vehicle and while travelling he fallen down and sustained fatal injury and hence, a case has been registered by P.W.4 Chellapandi, in crime No. 369 of 2009. The vehicle is belonging to P.W.5 Ochathevar and the vehicle was driven by P.W.6 Pandi and the case has been investigated by P.W.12 Parameshwaran and filed charge sheet and P.W.6 was convicted and fined and that factum has not been disputed. Furthermore, it is an admitted fact that the vehicle has been using for agricultural purposes and it is true that the deceased Rajamanickam was aged about 11 years and when he was travelled in the tractor, he fallen down and sustained fatal injuries and as per the report of P.W.3, Damodaran, there is a permit violation. According to the evidence of P.W.1, the Additional Divisional Manager/Appellant/A2, knowing fully well that there is permit violation, with a view to cause wrongful loss to the Insurance Company, the appellant has referred the matter for Lok Adalat and thereby, he committed the offence under Section 420 of I.P.C. and that has been correctly considered by the trial Court and he was convicted and sentenced and hence, he prayed for the dismissal of the appeal.

Considering the rival submissions made by both sides and perusal of typed set of papers would show that A2 was the Assistant Divisional Manager in United India Insurance Company and he is in public service as contemplated under Prevention of Corruption act and that factum is not disputed. Furthermore, the sanction granted by P.W.8, Sundaresan, General Manager is also not disputed.

Furthermore, it is also an admitted fact that the vehicle involved in the accident was owned by P.W.5 Ochathevar and at the time of accident, P.W.6 was driving the vehicle and one Rajamanickam, aged about 11 years has travelled in mudguard and he fallen down and sustained fatal injury and died and P.W.4 registered a case in crime No. 363 of 1999 for the offence under Sections 304(A) of I.P.C. and the investigation was conducted by P.W.12, Parameshwaran and after investigation, he filed charge sheet and after contest, P.W.6 the driver of the vehicle was convicted and he was imposed fine.

P.W.1 has deposed the procedures to be adopted on receiving summons in claim petition from the Court. The file of M.C.O.P.No. 2209 of 1999 has also been marked as Ex.P2. A3 Jayashankar was appointed as panel advocate. Admittedly, the appellant herein has appointed P.W.3 as investigating officer and he investigated the matter and filed the report Ex.P6. Perusal of Ex.P 6 would show that the words �permit violation� and that has been strike off, but there is no evidence to show that who had written the same and who had strike off the same. But, when P.W.1 was cross examined by A3, in his cross examination, he has deposed that there are many corrections in Ex.P 9 Investigation report and I do not know who made that. Hence, it is clear that there is no evidence to show that the endorsement has been made by the appellant herein and subsequently, it was strike off by him and hence the argument advanced by the learned Assistant Solicitor General appearing for C.B.I. cases does not merit acceptance.

Perusal of evidence of P.W.1 and also P.W.9 Prakash Rao Branch manager, United India Insurance, he has deposed that what is the procedure to be adopted while referring the matter for Lok Adalat. He further stated that if the quantum of compensation alone is in dispute, the matter would be referred for Lok Adalat and if the liability is questionable, the matter should not be referred to Lok Adalat. Admittedly, the vehicle viz., the tractor is denoted for agricultural purposes.

It is pertinent to note that admittedly, the vehicle was insured with the United India Insurance Company, during the relevant point of time of the accident. Therefore, the question as to whether the Insurance has been covered for coolie worker has to be decided only at the time of trial in M.C.O.P.No. 2209 of 1999.

It is pertinent to note that the copy of insurance policy has not been filed before this Court and to prove the same, the third party insurance coverage alone is there and there is no coverage for coolie or occupant. It is true that the case has to be tried by the Tribunal to find out as to whether the insurance company is liable to pay compensation to the claimant. However, the matter was referred for Lok Adalat.

It is a settled canon of criminal jurisprudence that the conviction of an accused cannot be founded on the basis of inference. The offence should be proved against the accused beyond reasonable doubt either by direct evidence and not on the basis of preponderance of probabilities and also surmise and conjunction. But, here, the prosecution has not filed any document to show the demand and acceptance of A2. In Ex.P18, M.C.O.P.No. 2209 of 2009 has been written in hand as item No. 20 and there is no evidence that the same has been written by the accused.

In such circumstances, the trial Court has convicted the appellant under Section 420 of I.P.C. only on the presumption. In paragraph No. 17 of the judgment, it was held that with a view to cause wrongful loss to the Insurance Company, the matter has been referred to Lok Adalat. As already stated that on the side of the prosecution, no document or no evidence has been let in to show that who is the competent person to refer the matter for Lok Adalat. P.W.1, in his cross examination, fairly conceded that the Deputy Manager, who is the superior than the Divisional Manager is the person to approve the list and before the approval of the list, it is also his duty to verify the same. Furthermore, it is pertinent to note that no action has been initiated by the Insurance Company and only on the source of information, the case has been registered and after the investigation, charge sheet has been levelled against the Divisional Manager and Assistant Divisional Manager and the Advocate appointed by the Insurance Company and the Advocate, who signed the joint memo.

In such circumstances, there is no evidence on the side of the prosecution that with a view to cause wrongful loss to the Insurance Company, the appellant/A2 referred the matter to Lok Adalat. As already stated, there is no evidence to show that in Ex.P18, item No. 20 has been written by the appellant for referring the matter. Therefore, I am of the view that the ingredients of Section 415 of I.P.C. has not been made out by the prosecution beyond all reasonable doubt. Hence, I am of the view that the trial Court has miserably failed to consider the same and only on the basis of inference and presumption, the appellant was found guilty for the offence under Section 420 of I.P.C. and hence, the conviction and sentence passed against the appellant for the offence under Section 420 of I.P.C. is unsustainable and is hereby liable to be set aside.

A4 Murugesan is only the panel Advocate of United India Insurance Company. He signed as a counsel in the absence of A3 and he signed at the request of Divisional Manager and he has nothing to do with the commission of offence. Furthermore, the joint memo has been filed not only by A4 but also by the Divisional Manager. During the settlement, Medical Practitioner and Retired Judicial Officer and other advocates would also be present and they would have arrived at settlement and in such circumstances, merely A4 signed in the joint memo, the ingredients of Section 120(B) viz., the conspiracy, has not been made out. The trial Court has rightly held that A2, A3 and A4 are not guilty for the offences under Sections 120(b) read with 420 of I.P.C. and Section 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988 and hence, the criminal Appeal (Md) No. 301 of 2010 is liable to be dismissed.

In fine, Criminal Appeal (MD) No. 430 of 2009 is allowed and the Criminal Appeal (MD) No. 301 of 2010 is dismissed. Judgment of conviction and sentence dated 18.12.2009 passed in C.C.No. 10 of 2004 on the file of the Special Court for CBI Cases, Madurai is hereby set aside. A2 is acquitted from the charge under Section 420 of I.P.C. The bail bond, if any executed by A2 shall stand cancelled. The amount already paid, if any, by A2 shall be refunded.