Both the Criminal revisions are filed to set aside the judgment in CA.Nos.110 and 108 of 2010 respectively dated 13.09.2011 on the file of the District Sessions Judge No.II, Kancheepuram confirming the judgment dated 22.07.2010 in CC.No.180 of 2003 on the file of the District Munsif-cum-Judicial Magistrate, Uthriamerur.
2. Heard the rival submissions made on both sides and perused the records.
3. The learned counsel for the petitioners submitted that the petitioners misappropriated the funds belong to the Society. The prosecution failed to prove the mensrea as required under the criminal cases, the same have been proved based upon the findings submitted by an Officer under the Cooperative Societies Act. No evidence has been recorded on the side of the prosecution and there is a delay of four years in completing the investigation. Only the official witnesses has been examined and no independent witness has been examined by the prosecution. It is submitted that no prior sanction was accorded from the authority concerned which is mandatory under Section 197 Cr.PC, since the petitioners are employed as public servants at the time of commission of the alleged offence while discharging their official duty. Under Section 124(3) of the Societies Act, before enquiry previous sanction has to be obtained. Furthermore, the learned counsel stated that the petitioners have already deposited the misappropriated fund, thus there is no monetary loss has been caused to the Society.
4. The learned Government Advocate (Crl. side) conceded that the prosecution has not accorded any sanction from the authority to proceed against the petitioners. The delay of four years in registering the case has been occurred, due to the delay in conducting the domestic enquiry.
5. The learned counsel for the petitioners in support of his contention cited the following authorities :-
1. AIR 1997 SC 3247 - Sahib Singh V. State of Haryana.
2. AIR 2002 SC 1949 - Bijoy Singh and another V. State of Bihar
3. Indian Kanoon : Http://indiankanoon.org.doc/71777130/ - Devinder Singh and others V. State of Punjab through CBI.
4. Indian Kanoon : Http://indiankanoon.org.doc/179705440/ - Rambraksh @ Jalim v. State of Chattisgarh.
5. Unreported judgment of the Hon'ble Supreme Court dated 19.11.2015 - Prof N.K.Ganguly v.
CBI New Delhi.
6. On perusal of the case laws referred to above, it is clear that for the purpose of obtaining previous sanction from the appropriate authority under Section 197 Cr.PC, it is imperative that the alleged offence is committed in discharge of official duty by the accused. It is also imported for the Court to examine the allegations contained in the final report against the accused, to decide whether previous sanction is required to be obtained by the prosecution from the appropriate authority before taking cognizance of the alleged offence by the trial judge against the accused. In the instance case, the allegations made against the accused in the final report filed by the respondent police that the alleged offences were committed by them while discharging their official duty, therefore it was essential for the trial judge to correctly decide as to whether the previous sanction under Section 197 Cr.PC was required to be obtained by the respondent police, before taking cognizance.
7. Admittedly, the petitioners have deposited the misappropriated amount to the deposit of the society, thus the petitioners have not caused any monetary loss to the society. Hence, this Court is inclined to set aside the orders passed by the trial Court.
8. In the result, both the criminal revisions are allowed, by setting aside the judgment of the Courts below. The petitioners herein are acquitted from all the charges. The bail bond if any, executed by the petitioners shall stand cancelled and the fine amount, if any, paid by the petitioner shall be refunded to them.
17.03.2017.
Index : Yes/No Internet : Yes/No tsh To
1. The District Sessions Judge No.II, Kancheepuram.
2. The District Munsif-cum-Judicial Magistrate, Uthriamerur.
3. The Public Prosecutor, High Court, Madras.
B. GOKULDAS, J.
tsh Pre Delivery Orders in Crl.RC.No.1413 and 1414 of 2011 17.03.2017 http://www.judis.nic.in