Engaging in consultancy does not constitute 'trade' under Section 168 IPC if not prohibited by law, therefore, prosecution is unwarranted without evidence of illegality.

ORDER :

(D. BHARATHA CHAKRAVARTHY, J.)

This Criminal Original Petition is filed with a prayer to quash the Final Report filed in C.C.No.8045 of 2017 on the file of the learned Additional Chief Metropolitan Magistrate, Egmore, Chennai.

2. On source information, a case was registered in RC MA1 2016 A 0038 CBI by the respondent. The information was that the first accused, an Enforcement Officer with Employees' Provident Fund Organisation, and the second accused, who runs a chain of restaurants, conspired together. The first accused accepted a sum of Rs.10 Lakhs as a bribe and allowed the second accused to submit false Provident Fund accounts to cheat the organisation and gain undue pecuniary advantage by not paying the actual Provident Fund dues.

3. After investigation, the information was found to be incorrect, and the investigation did not reveal any evidence to substantiate the allegations against both the public servant and the second accused. Therefore, further action was dropped against the accused, against whom the case was registered. However, during the course of investigation, it was found that the petitioner/Balasundram was only filing returns and other compliances for the second accused and was acting as a consultant to them, receiving fees, as reflected in his bank statements and Income Tax Returns. Since Balasundram, being a public servant employed by Andrew Yule and Company Ltd., a Government of India undertaking, is prohibited by his Conduct Rules from engaging in such profit-making activities, his actions amounted to an offence under Section 168 of the INDIAN PENAL CODE . As a result, the respondent filed a Final Report charging him with an offence under Section 168 of the INDIAN PENAL CODE .

4. The findings concerning the first and second accused are included in paragraph No.11 of the Final Report, which is excerpted below for ease of reference:-

"11. Hence it is submitted that as regards to Shri T.Ramanan(A-1) and M/s Adyar Ananda Bhavan(A-2), there is no proof of mens-rea and proof of quid-pro-quo to establish that there was demand and acceptance of Rs.10 lakhs by Shri T.Ramanan(A-1) from M/s Adyar Ananda Bhavan(A-2) and there is no evasion of PF dues by submitting false and fabricated documents by M/s Adyar Ananda Bhavan(A-2) since there is no inspection conducted at A-2 company since 2012. Investigation conducted did not reveal any evidence to substantiate the allegations levelled against the public servant i.e. Shri T.Ramanan(A-1) and M/s Adyar Ananda Bhaven(A-2), and therefore, no criminal case is made out against them."

5. The allegations against the said Balasundram, the petitioner herein, are contained in paragraph No.12, which are extracted below for quick reference:-

"12. During the searches conducted on 09.12.2016 at M/s Adyar Ananda Bhavan(A-2), two bills for amounts of Rs.25,000/- each dated 21.06.2016 raised by Shri S.Balasundaram(A-3) were seized and it was revealed that Shri S.Balasundaram(A-3) is Provident Fund and Employment State Insurance (PF & ESI) consultant to M/s Adyar Ananda Bhavan (A-2) since more than twelve years. Investigation also revealed that Shri S.Balasundaram(A-3) is a Public Servant working in M/s Andrew Yule & Company Ltd. since 1988 which is a Government of India enterprise. Apart from his job at M/s Andrew Yule & Company Ltd., he is also working as a Private PF & ESI consultant to various firms and companies in his individual capacity. The statement of his SB A/c No. 428211687 held at Indian Bank, LB Road Branch, Chennai reveals that he has been constantly receiving income from se