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2019 Supreme(Mad) 1396
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. DHANDAPANI, J.
A.K. Alva – Petitioner
Versus
State represented by Inspector of Police, Bangalore & Another – Respondents
Crl. R.C. No. 1433 of 2018
Decided On : 30-01-2019
For the Petitioner:R. John Sathyan, Advocate.
For the Respondent:V. Srinivasan, Special Public Prosecutor, S. Patrick, Advocate.
Headnote:
Indian Penal Code,1860 - Sections 120-B r/w 409, 420 and 471 - Criminal Procedure Code,1973 - Sections 319,397 and 401 - Prevention of Corruption Act - Section 13(2) r/w. 13(1)(c), (4)(1)(b) and (d) - Assistant General Manager of Union Bank of India Industrial Finance Branch Chennai and A4 was General Manager of Bank at Chennai - He was charged for offences punishable under Section 120-B r/w. 409, 420, 468 and 471 IPC and Section 13(2) r/w. 13(1)(c) and (d) of Prevention of Corruption Act that he and entered into a conspiracy with Chairman and Managing Director of India Household and Health Care Limited a sole distributor in India for M/s L.G Household and Health Care Limited Korea for import and sale of FMCG products vide a license agreement and cheated Union Bank of India by according sanction and release of credit facilities to Company and in furtherance of same abusing their official position allowed release of sanctioned loan amount to associate of India Household and Health Care Ltd knowing fully well that agreement between and M/s. L.G Household and Health Care Limited Korea was terminated itself and also that sanction conditions were not complied with and cheated Bank to tune of Crores as - Thereafter petitioner came to know that pursuant to vigilance enquiry report was implicated in case for having participated in above said crime - In chief-examination herself admitted that she is in part of sanctioning loan has approved issuance of two - In favour of company based on note prepared by her and also identified endorsement made by Company for accepting two D.Ds - Evidence of and vigilance enquiry report make it clear about involvement of above said occurrence - Hence petitioner filed a petition in under Section 319 of Cr.P.C to add viz as an accused - Said petition was dismissed by trial Court vide order - Challenging said dismissal order petitioner has filed present revision before this Court - What is nature of satisfaction required to invoke power under Section 319 Cr.P.C to arraign an accused? Whether power under Section 319(1) Cr.P.C can be exercised only if court is satisfied that accused summoned will in all likelihood be convicted - Whether petitioner has a genuine reason to file a petition under Section 319 Cr.P.C in interest of justice or not? - Whether a prima facie case is made out to proceed against accused - Whether second respondent committed offence concluded that second respondent is only a supporting officer in preparing notes and erroneously dismissed petition which is unsustainable one - Whether evidence on record is such which would reasonably lead to conviction of person sought to be summoned - Whether a higher standard be set up for purpose of invoking jurisdiction under Section 319 of Code is question - Held, Power under Section 319 of Code can be exercised by Court suo motu or on an application by someone including accused already before it if it is satisfied that any person other than accused has committed an offence and he is to be tried together with accused -Power is discretionary and such discretion must be exercised judicially having regard to facts and circumstances of case - Undisputedly it is an extraordinary power which is conferred on Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier - Word evidence in Section 319 contemplates evidence of witnesses given in Court - Under Sub-section (4)(1)(b) of aforesaid provision it is specifically made clear that it will be presumed that newly added person had been an accused person when Court took cognizance of offence upon which inquiry or trial was commenced - That would show that by virtue of Sub-section (4)(1)(b) a legal fiction is created that cognizance would be presumed to have been taken so far as newly added accused is concerned - Court hold that though only a prima facie case is to be established from evidence led before court not necessarily tested on anvil of cross-examination it requires much stronger evidence than mere probability of his complicity - Test that has to be applied is one which is more than prima facie case as exercised at time of framing of charge but short of satisfaction to an extent that evidence if goes unrebutted would lead to conviction - In absence of such satisfaction court should refrain from exercising power under Section 319 Cr.P.C In Section 319 Cr.P.C purpose of providing if it appears from evidence that any person not being accused has committed any offence is clear from words for which such person could be tried together with accused - Words used are not for which such person could be convicted - There is therefore no scope for court acting under Section 319 Cr.P.C to form any opinion as to guilt of accused - Power under Section 319 Cr.P.C is a discretionary and an extraordinary power - It is to be exercised sparingly and only in those cases where circumstances of case so warrant - It is not to be exercised because Magistrate or Sessions Judge is of opinion that some other person may also be guilty of committing that offence - Only where strong and cogent evidence occurs against a person from evidence led before court that such power should be exercised and not in a casual and cavalier manner - Course of any inquiry into or trial of an offence it appears from evidence that any person not being accused has committed any offence for which such person could be tried together with accused Court may proceed against such person for offence which he appears to have committed - Further as per sub-section (4) of aforesaid provision makes it clear that where Court proceeds against any person under sub-section (1) proceedings in respect of such person shall be commenced afresh and witnesses re-heard and subject to provisions of clause case may proceed as if such person had been an accused person when Court took cognizance of offence upon which inquiry or trial was commenced - Unless a higher standard for purpose of forming an opinion to summon a person as an additional accused is laid down ingredients thereof viz an extraordinary case and a case for sparingly exercise of jurisdiction would not be satisfied - Criminal Revision Dismissed
JUDGMENT :
(Prayer : Criminal Revision Petition is filed under Sections 397 and 401 of Cr.P.C. against the order of dismissal dated 29.06.2018 made in Crl.M.P.No.5108 of 2016, to add P.W.2 (Smt.C.S.Narayanai as an accused in C.C.No.32 of 2008 on the file of the XI Additional Sessions Special Judge for CBI Cases (Banks and Financial Institutions) Chennai, for offences under Sections 120-B r/w 409, 420 and 471 of I.P.C. and Section 13(2) r/w. 13(1)(c) and (d) of the Prevention of Corruption Act.)
This Criminal Revision is filed against the order of dismissal, dated 29.06.2018, passed by the learned XI Additional Special Judge (for CBI Cases), Chennai, in Crl.M.P.No.5108 of 2016 in C.C.No.32 of 2008.
2. The case of the petitioner is as follows:-
The petitioner herein/A1 was the Assistant General Manager of Union Bank of India, Industrial Finance Branch, Chennai and A4 was the General Manager of the Bank at Chennai. He was charged for the offences punishable under Section 120-B r/w. 409, 420, 468 and 471 IPC and Section 13(2) r/w. 13(1)(c) and (d) of the Prevention of Corruption Act that he and A4 entered into a conspiracy with A2 and A3 Chairman and Managing Director of M/s. India Household and Health Care Limited [IHHL], a sole distributor in India for M/s. L.G. Household and Health Care Limited, Korea, for import and sale of FMCG products, vide a license agreement dated 08.05.2004 and cheated Union Bank of India, by according sanction and release of credit facilities to the Company and in furtherance of the same, A1 and A4 abusing their official position, allowed the release of the sanctioned loan amount to the associate of M/s. India Household and Health Care Ltd./A5 knowing fully well that the agreement between A5 and M/s. L.G. Household and Health Care Limited, Korea, was terminated on 04.02.2005 itself and also that the sanction conditions were not complied with and thus, cheated the Bank to the tune of Rs.16.86 Crores as on 31.03.2006. Thereafter, the petitioner came to know that pursuant to the vigilance enquiry report, P.W.2 was implicated in the case for having participated in the above said crime. In the chief-examination, P.W.2 herself admitted that she is in part of sanctioning the loan, has approved the issuance of two D.Ds. in favour of A5 company, based on the note prepared by her and also identified the endorsement made by the Company for accepting the two D.Ds. The evidence of P.W.2 and the vigilance enquiry report make it clear about the involvement of P.W.2 in the above said occurrence. Hence, the petitioner filed a petition in Crl.M.P.No.5108 of 2016 in C.C.No.32 of 2008 under Section 319 of Cr.P.C. to add P.W.2 viz., C.S.Narayanai as an accused. The said petition was dismissed by the trial Court, vide order dated 29.06.2018. Challenging the said dismissal order, the petitioner has filed the present revision before this Court.
3. The learned counsel appearing for the petitioner submitted that at the relevant point of time, the petitioner was working as Assistant General Manager. The second respondent was working as Senior Branch Manager and both were acting in the role of preparation of notes for issuance of D.Ds. in favour of A5 Company. The Internal Vigilance Report dated 17.02.2006 clearly shows about the involvement of the second respondent/P.W.2 and P.W1 and the second respondent/P.W.2 have committed the irregularities along with others, who were In-charge of the Company affairs. The authorities of the Company have also categorically held against the second respondent/P.W.2 and hence, it is necessary to implead the second respondent/P.W.2 as one of the accused in the aforesaid crime.
4. The learned counsel further submitted that the learned Special Judge without considering the issue as to whether the second respondent/P.W.2 committed the offence, concluded that the second respondent/P.W.2 is only a supporting officer in preparing notes and erroneously dismissed the petition, which is unsustainable one.
