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2008(1) Crimes 681 (Mad.)
MADRAS HIGH COURT
S. Nagamuthu, J.
S. Gunasekaran —Petitioner
versus
State rep. by Inspector
of Police —Respondent
Criminal OP (MD) No. 1834 of 2005
Decided on 6.11.2007
Counsel for the Parties:
For the Petitioner: Mr. K. Chellapandian Senior Counsel for T.A. Omprakash.
For the Respondent:Mr. Siva Ayyappan, Government Advocate (Crl. Side)
IMPORTANT POINT
Where other accused employees of bank misappropriated money of bank and allegations against petitioner accused was that he failed to verify accounts and find out malpractices, he could not be charged with criminal liability.
Headnote:Indian Penal Code, 1860—Sections, 409, 468, 467 and 477 and 471—Employees of Co-operative Rural Bank committed serious irregularities causing huge loss to society—Petitioner working as Special Officer was to supervise day to day affairs of administration of Bank—Petitioner was charge-sheeted with other accused for offences under—Petition to quash prosecution—Petitioner was alleged to have failed to verify accounts and find out malpractices committed by other accused—No other material to link petitioner with commission of crime by other accused—Negligence could create only a civil liability and there could not be vicarious liability under criminal law—For offence of abetment intentional aiding and active complicity was essential—No case was made out warranting trial against petitioner and proceedings were liable to be quashed. (Paras 7, 9 and 14)
Result: Petition allowed.
ORDER
S. Nagamuthu, J.—The petitioner is the 11th accused in CC No. 410 of 2003 on the file of the judicial Magistrate No. 2 Kulithalai, Karur District. The respondent has filed the final report against the petitioner for alleged offences under Section 120(b) read with Sections 409, 468, 467 and 477A and 471 IPC.
2. Admittedly, the petitioner was working as the Special Officer of Co-operative Rural Bank at Nangavaram, Kulithalai Taluk, between 18.1.1989 to 11.6.1990. As per the bye-law of the said Bank, the duty of the petitioner is that he has to supervise the day-to-day affairs of the administration at the Bank and to verify the accounts of the society and also to issue order sanctioning loan to the members of the society.
3. In respect of the affairs of the society, an enquiry was ordered under Section 81 of the Tamil Nadu Co-operative Societies Act (hereinafter referred to as “the Act”). One Mr. S. Gurubarasundaram who was appointed as Enquiry Officer has held enquiry and has submitted a report to the Deputy Registrar wherein he has stated that the employees of the bank have committed serious irregularities hereby causing huge loss to the society played by the petitioner, in his report he has stated petitioner did not discharge his duties with diligence when he was functioning as the Special Officer of the Bank between 18.1.89 and 11.6.1990. He has further stated that had he been diligent, the irregularities committed by the other persons would have come to light immediately and in which case, the further commission of irregularities would have been prevented. On the basis of the said report of the Enquiry Officer, a complaint was forwarded by the Deputy Registrar concerned to the respondent police on which a case was registered in Crime No. 4/93 for offence under Sections 409, 467, 468, 471, 477A read with 120(b) IPC against 14 accused. The petitioner was arrayed as 11th accused in the said case. The first accused in the said case was the then Secretary of the Bank and the others were the employees of the Bank. On completing the investigation, the respondent has laid the charge-sheet against all the 14 accused, on which, the learned Judicial Magistrate has taken cognizance.
4. On a previous occasion, the accused 12 and 13 approached the Court in Cri.O.P. No. 1613 of 2005 seeking to quash the proceedings against them. One Mr. A. Palanivelu (A12) was the Senior Auditor of the said Bank and Mr. S. Neelakantan (A13) was the another Auditor of the said Bank during the said relevant period. In the said petition, the Accused 12 and 13 have stated that though the prosecution has been launched against them for conspiracy, there are no materials to connect them with the crime against whom substantive charges have been framed.. Having considered the materials available on record, this Court by order dated 1.3.2005, has allowed the said petition and quashed the proceedings as against the accused Nos.12 and 13 alone. The petitioner herein who is the 11th accused has now come forward with this petition and proceedings on similar grounds.
5. According to the learned senior counsel appearing for the petitioner except the allegation that the petitioner was negligent in discharging his duty there is no other materials at all available on record so as to attract any offence against him.
6. The respondent has filed counter dated 6.11.2007, wherein the respondent has stated in paragraph 4 as follows:
“4. It is submitted that as per the charge sheet, the petitioner is arrayed as 11th accused. The petitioner was Special Officer in the Bank namely Nangavaram Cooperative Rural Bank, Nagavaram, Kulithalai Taluk, Karur District from 18.1.1989 to 11.6.1990. As per the bye-law of the Co-operative Bank, the petitioner’s duty was to supervise the day-to-day administration, to verify the accounts and signed and also to give sanction for loans to the members, to supervise the employees work and also verify the jewels loan and other loans. But the petiti
