Revision Cases are directed against the order of dismissal dated 07.12.2016 passed in Crl.M.P.Nos.1593 of 2015 and 1595 of 2016 in C.C.Nos.14 of 2015 and 15 of 2015 respectively by the learned Special Judge for Prevention of Corruption Act, Chennai.
2. The facts leading to the filing of the present revisions are as follows:
While the petitioner was serving as a Vice Chancellor of Tamil Nadu Dr.M.G.R.Medical University, Chennai for the period emanates from 27.11.2006 to 26.11.2009, he travelled various foreign countries, such as, Norway, USA, London and Australia during the period from 25.8.2007 to 29.08.2007 and from 30.8.2008 to 30.09.2008 to perform his Official duty. As per the Government Order dated 27.01.2012, a detailed enquiry was conducted by the Officers of Directorate of Vigilance and Anti- Corruption, Chennai, as against the petitioner in respect of certain allegations with regard to the said trip and after completion of the enquiry, a final report was sent to the Government and thereafter a case was registered after getting permission from the Government. It is averred that the petitioner, being Vice Chancellor, while travelling abroad to attend conference, booked ticket in business class and later cancelled the same and travelled in economic class and misappropriated the difference amount and dishonestly concealed the fact that he travelled in the economic class ticket by cancelling the business class ticket. After investigation, a Charge sheet has been filed as against the petitioner for the offences under Sections 409, 420, 467, 468, 471 of IPC and 13 (2) read with 13 (1) (d) of P.C. Act 1988. When the matter was taken cognizance by the learned Special Judge for Prevention of Corruption Act, Chennai in C.C.Nos. 14 of 2015 and 15 of 2015, the petitioner herein has filed a petition u/s.239 of Cr.P.C. to discharge him from the aforesaid cases. After contest, the said petitions were dismissed by the learned Special Judge. Aggrieved over the same, the petitioner is before this Court with the captioned Revision Petitions.
3. The learned counsel for the Revision petitioner contended that the Trial Court has erred in taking cognizance of the aforesaid cases as the respondent has failed to obtain order of sanction from the Government as contemplated under Section 197 (1) Cr.PC. to prosecute the petitioner. It is the contention of the learned counsel for the petitioner that attending conference is the Official duty and for the said official purpose, the claim for the T.A.bills were made by him and hence, prior sanction of the Government is absolutely necessary. It is the further contention of the learned counsel for the petitioner that there was a delay of four years in registering the FIR. Further, there was a delay of two years in examining the witnesses. It is also contended that there is no evidence to show that the fabricated documents were produced along with T.A.Bills. According to the learned counsel, only the original bills were produced by the petitioner. Therefore, it is submitted by the learned counsel that the offence of cheating has not been made out by the respondent. It is the submission of the learned counsel that no prima facie evidence is available to show that the bills were forged and submitted for the T.A. Claim. It is also the submission of the learned counsel that there is no materials available for proving the breach of trust.
4. The learned counsel for the petitioner has vehemently contended that attending conference is a part of Official Duty and permission was properly accorded by the Governor of Tamil Nadu to attend such conference and that the petitioner, being Vice Chancellor at the relevant time, was entitled to claim business class air ticket and he never committed misappropriation. According to the learned counsel, the petitioner has not suppressed any materials and in fact, he has submitted the original bills for claiming T.A. Hence, it is submitted by the learned counsel that merely because the petitioner has claimed the alleged amount after travelling in economic class, the same at no stretch of imagination would amount to cheating or Breach of Trust or forgery in the absence of materials to establish the same. Hence, it is submitted that the charges levelled against the petitioner are baseless and not maintainable in law. Therefore, it is submitted by the learned counsel that the learned Special Judge, without appreciating all these facts, has simply dismissed the applications filed by the petitioner for discharge, which is not sustainable. Therefore, the learned counsel for the petitioner prays for allowing the captioned petitions.
5. In support of his arguments, the learned counsel for the petitioner has placed reliance on the judgments in Matagob Dobey v. H.C.Bhari (1956 AIR 44); C.K.Jaffer Sharief v. State (through CBI) [(2013) 1 MLJ (Crl) 90 (SC); R.Ramachandran Nair v. Deputy Superintendent, Vigilance of Police and another [(2011) 4 MLJ (Crl) 687 (SC) and the unreported judgments of the Hon`ble Supreme Court in Prof.N.K.Ganguly v. CBI New Delhi (Crl.Appeal No.798 of 2015); R.Balakrishna Pillai v. State of Kerala (Crl.Appeal No.372 of 2001); and Gauri Shankar Prasad v. State of Bihar and Another (Crl.Appeal No.379 of 2000).
6. Per contra, the learned Additional Public Prosecutor vehemently opposed the captioned petitions contending that the petitioner, while serving as Vice Chancellor was invited to attend conference in Norway, USA, London and Australia, though booked business class ticket, travelled in economic class and later cancelled the business class ticket and misappropriated the difference amount and submitted T.A.bill and dishonestly concealed the fact that he cancelled the business class ticket and thereby committed Breach of Trust. In view of the above act, the petitioner was charged for the offences under Sections 409, 420, 467, 468, 471 of IPC and 13 (2) read with 13 (1) (d) of P.C. Act 1988. It is the contention of the learned Public Prosecutor that since there are materials available against the accused, at this stage, roving enquiry is not feasible. According to the Additional Public Prosecutor even strong suspicion is available as against the accused. Hence, it is submitted by the learned Additional Public Prosecutor that the learned Special Judge, after appreciating the entire materials produced by the prosecution, has rightly dismissed the applications filed by the petitioner for discharge and hence, the same does not warrant interference of this Court. Therefore, the learned Public Prosecutor prays that the petitions have to be dismissed.
7. In support of his arguments, the learned Public Prosecutor has placed much emphasis on the judgments reported in State of Tamil Nadu. v. N.Suresh Rajan and Others [(2014) 3 SCC (Cri) 529]; State of Orissa v. Debendra Nath Padhi (2004 (8) SCC 568; and State of H.P v. M.P.Gupta [(2004) 2 SCC 349].
8. I have heard the learned counsel for the petitioner and the learned Additional Public Prosecutor. I have also perused the entire materials available on record.
9. The only point that arises for consideration in these revision petitions is as to whether the order passed by the Trial Court in dismissing the applications filed by the petitioner for discharge suffers any illegality or irregularity?
10. It is well settled that the power of Revision is not automatic and only if the Court satisfies that there was irregularity or illegality in the finding of the Trial Court, such power can be exercised. The subject matter of the revisions relates to the order passed by the Trial Court in discharge applications. Admittedly, the prosecution has laid two charge sheets as against the petitioner for the alleged misappropriation, Breach of Trust and fabrication of records etc., for five different occurrence. The prosecution has also examined 20 witnesses and also relied upon more than 33 documents to sustain their allegation as against the petitioner. The Trial Court took cognizance of the offence based on the materials produced by the prosecution.
11. It is also well settled that only prima facie case has to be seen at the time of taking cognizance. In other words, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. If the Court while taking cognizance of the offence has come to the conclusion that the commission of offence is the probable consequence it would justify the framing of charge against the accused. The Court is not expected to go deep into the probative value of the material on record.
12. The Hon`ble Supreme Court in STATE OF TAMIL NADU BY INSPECTOR OF POLICE V. N.SURESH RAJAN AND OTHERS cited supra, has held that no mini trial is contemplated at the stage of considering discharge applications. The Hon`ble Supreme Court further held that it is trite that at the stage of consideration of an application for discharge, the Court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to finding out the facts emerging therefrom, taken at their face value, disclose the existence of all the ingredients constituting the alleged offence.
13. From the above settled position of law, it is clear that the Court is not expected to go deep into the probative value of the materials on record. Therefore, it is clear that the question of deciding the admissibility of evidence, at this stage, does not arise at all. The question of admissibility and relevancy of the material is a mater of appreciation of evidence.
14. Admittedly, in this case, the petitioner booked ticket in business class, later cancelled the same and travelled in economy class and received the difference amount from the agent and appropriated the same and thereby cheated the Government by dishonestly concealed the fact that he travelled in economy class by cancelling the business class ticket. Whether submitting such bills would amount to creation of false records or not is also the matter of evidence. Now, at this stage, it is premature to consider the above aspects, i.e with regard to admissibility of the documents. Whether the ingredients of the offence has been made out or not can be ascertained only after examination of the oral and documentary evidence to be produced by the prosecution at the time of trial. Therefore, the contention of the learned counsel for the petitioner that the offences levelled against the accused has not been properly made out cannot be gone into by way of these instant revisions.
15. Similarly, the contention of the learned counsel for the petitioner that petitioner had no dishonest intention to commit the offence under Section 409 and other IPC also cannot be considered at this stage, as the same can be ascertained only after a full fledged trial.
16. Another contention of the learned counsel for the petitioner that sanction of the Government under Section 197 Cr.PC is required as the alleged offence was committed by way of discharging the official duty by the petitioner also cannot be entertained for the simple reason that the petitioner, being Vice Chancellor, at the relevant point of time, was entitled to certain privileges extended by the Government but the petitioner, taking advantage of such privilege, cannot misuse the same by claiming T.A.bill by submitting cancelled executive class tickets.
17. Therefore, the alleged act of claiming difference amount by submitting the cancelled executive class tickets, other than the actual spent, clearly gives an indication that the act of the petitioner would not amount to official duty. The misappropriation projected by the prosecution has no nexus with the discharge of the Official Duty of the petitioner. Therefore, this Court is of the view that Sanction under Section 197 Cr.PC is not required in this case.
18. No doubt, in Prof. N.K.Ganguly v. CBI New Delhi, and in R.Balakrishna Pillai v. State of Kerala, the Hon`ble Supreme Court has held that if any offence committed while discharging official duty, prior sanction is necessary under Section 197 Cr.P.C.
19. Similarly, in the judgment reported in Gauri Shankar Prasad v. State of Bihar and Another , the Hon`ble Supreme Court has held that in the absence of lack of sanction, the prosecution is not maintainable.
20. There is no dispute with regard to the proposition laid down in these cases. In the instant cases, the alleged misappropriation of differential amount cannot be said to be connected with discharge of official duty. Hence, the judgments relied upon by the learned counsel for the petitioner is not applicable to the facts of the present cases.
20. At this juncture, it would be useful to refer the judgment in State of H.P v. M.P.Gupta (2004) 2 SCC 349, wherein the Hon`ble Supreme Court by referring the judgment in the case of P.Arulswami v. State of Madras, has observed as follows:
"... It is not therefore every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Criminal Procedure Code; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary. It is quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable."
The above judgment is squarely applicable to the facts of the present cases since in the instant cases, as already discussed above, the act of the petitioner would not amount to official duty. The Trial Court has rightly perused the materials produced by the prosecution and had come to the conclusion that there are prima facie materials available on record to proceed further as against the accused. Therefore, this Court is of the view that the order of dismissal passed by the learned Trial Court does not suffer any irregularity or illegality. Hence, this Court is not inclined to interfere with the order passed by the Trial Court.
In the result, the Criminal Revision Petitions are dismissed.
ga 08.06.2017 Index : Yes/No Internet: Yes Speaking order/non speaking order To The State rep.by The Inspector of Police V&AC (City 1) Dett. R.A.Puram Chennai -600 029
N. SATHISH KUMAR, J.
ga pre delivery order in Crl.R.C. Nos.323 and 324 of 2017 08.06.2017