Chandrasekharan Nair vs State of Kerala and Others

K.A. Mohamed Shaft, J.—The petitioner in Crl. M.C. Nos. 2861, 2793 and 4448 of 1998 is the same person. He is accused in Crime No. 42/98 and 39/98 and the first accused in Crime No. 94/98 registered by Ramapuram police. The petitioner in Crl. M.C. 4042/98 is the second accused in Crime No. 94/98 registered by Ramapuram Police. These cases are registered against the petitioners alleging offence punishable under Sec. 409 of the Indian Penal Code on the basis of the complaints filed by the respective de facto complainants. Petitioner in Crl. M.C. No. 2793, 2861 and 4448/98 has been working as a clerk in the Vande Matharam High School who is under suspension, and the petitioner in Crl. M.C. No. 4042/98 is the Headmistress of the same school. The allegation is that the petitioners committed criminal breach of trust in respect of a portion of the amount payable to the respective de facto complainant due to them from the provident fund accounts on their retirement from service as teachers from the school. The petitioners have filed these petitions under Sec. 482 of the Cr.P.C. to quash the F.LR. registered against them by Ramapuram Police and the consequent investigation against them in these cases. According to them, the entire amounts due to the de facto complainants were paid and they have acknowledged the receipt of the entire amount and the above false cases are registered against them at the instance of the Manager of the school who has been impleaded as the 5th respondent in Crl. M.C. No. 2793, 2861, 4448 and 4th respondent in Crl. M.C. No. 4042/98, since the petitioners have complained against him regarding financial irregularity and defalcation of large amounts belonging to the school.

Counsel for the petitioners vehemently submitted that there is absolutely no grounds to register the above cases against the petitioners, and there is no scope for conviction of the petitioners for the alleged offences in these cases.

The petitioner in Crl. M.C. 2793, 2861 and 4448/98 has produced Annexures 1 to 3 to prove that the Manager had grudge against him for making such allegations. But the manager has contended that the allegations evidenced by Annexure A1 to A3 were made by the petitioners in the year 1996 and all those matters were settled subsequently and the petitioners had not made any such allegations against the Manager subsequent thereto. He has also contended that there are several cases registered against the petitioners in those Crl. MCs. alleging similar offences including the above cases and on the mistaken belief that the Manager had taken active part in getting those cases registered against the petitioners, he has made such unfounded and wanton allegations made against the manager. If there are sufficient materials to implicate the petitioners in these cases, the question whether there is enmity or not between the manager and the petitioners in these cases is of no significance.

The petitioners contended that they being the clerk and the Headmistress in the private school are not public servants in order to attract the provisions of Sec. 409 of the Indian Penal Code. Section 409 of the Indian Penal Code provides punishment for criminal breach of trust by public servant. Section 21 of the I.P.C. defines public servant. Counsel for the petitioners vehemently submits that the petitioners do not come in any of the 12 categories included in Sec. 21 of the I.P.C. as public servant. But this contention of the petitioners is absolutely unsustainable. The 12th category described in Sec. 21 of the I.P.C. reads as follows:

Public servant:- The words "public servant" denote a person falling under any of the descriptions hereinafter following, namely:-

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Twelfth - Every person -

(a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government;

(b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government Company as defined in Sec. 617 of the Companies Act, 1956 (1 of 1956).

Under Sec. 9(1) of the Kerala Education Act, the Government shall pay the salary of all teachers in aided schools direct or through the Headmaster of the school. Sec. 9(2) of the Act provides that the Government shall pay the salary of the non-teaching staff of the aided schools appointed before the 31st May 1957 and continuing in office at the commencement of this section on the scales applicable to them immediately before the 31st May, 1957. It shall be competent for the Government to prescribe the number of persons to be appointed in the non-teaching establishment of aided schools, their salaries, qualifications and other conditions of service. The salary of the persons appointed in the non-teaching establishment in accordance with the rules so prescribed shall be paid by the Government. Admittedly, the petitioners herein are members of the teaching and non-teaching staff in the aided school whose salary is being paid by the Government as provided under Sec. 9 of the Kerala Education Act. Therefore, the petitioners herein who are the Headmistress and clerk in the aided school squarely fall within the ambit of public servant as defined in Sec. 21 of the Indian Penal Code. Hence, the contention of the petitioners that they being not public servants as defined under Sec. 21 of the Indian Penal Code, the above case registered against them alleging offence punishable under Sec. 409 of the Indian Penal Code is illegal is absolutely unsustainable.

The petitioners vehemently contended that under Chapter XXX of the Kerala Education Rules which deals with Kerala Aided School Employees Provident Fund Rules provided for maintenance of provident fund accounts, pass book etc. Rule 31 of Chapter XXX of the Kerala Education Rules provides that it is the duty of the Accounts Officer to pay the amount due under the provident fund to retired teacher on an application made by him. Rule 2(a) of Chapter XXX of the Kerala Education Rules defines accounts officer. Rule 2(a) provides that the Accounts Officer means such officer as may be appointed by the Government to keep the accounts of the Provident Fund of employees to aided schools. Rule 33 of Chapter XXX stipulates that it is the duty of the Accounts Officer to make payment as provided under Sec. 4 of the Provident Fund Act, 1925, when the amount standing to the credit of a subscriber in the fund becomes payable. Rule 43 of Chapter XXX of the Rules provides that the applications received for closure of provident fund account on superannuation of the teacher should be in Form E1. According to the petitioners, all the particulars including the correctness of the amount should be filled by the concerned teacher in the application form. Apart from the fact that the application should be forwarded to the controlling officer who is the District Educational Officer in these cases through the Headmaster of the aided school, no other duty is cast upon the petitioners with regard to the amount claimed by the retired teachers and the payments have been made to the concerned teachers after those teachers signed the acquittance register acknowledging the receipt of the correct amount. But the definite case of the de facto complainants in these cases is that they were paid only a lesser amount than the amounts mentioned in the acquittance register maintained in the school and they came to know of that fact much after the payments were made to them and there are manifest tampering, corrections and manipulations in the acquittance register altering the amount paid to them. As it is clear from Chapter XXX that the applications are to be filed and the disbursement of the amount is to be made through the Headmaster of the school on the basis of the provisions of Chapter XXX of the Kerala Education Rules, the petitioners cannot contend that they are not liable or responsible for the claim or disbursement of the provident fund amount due to the retiring teachers and the question whether there are corrections or manipulations in the acquittance register maintained in the school are matters to be investigated and the true facts have to be brought out after investigation.

The petitioners vehemently contended that no prima facie case has been made out against the petitioners in the F1. statement alleged to have been given by the respective de facto complainants against the petitioners in these cases. They argued that unless and until the ingredients of the offence punishable under Sec. 409 of the I.P.C. are made out in the F1. statement filed against them, they are not liable to be prosecuted in these cases and the F.I.R. registered against them has to be quashed. It is well settled that in a proceeding under Sec. 482 of the Cr.P.C. seeking to quash the prosecution at the initial stage, the question to be considered is whether the uncontroverted allegations made against the accused prima facie established the offence. It has been held so by the Apex Court in Madhavrao Jiwajirao Scindia and Others Vs. Sambhajirao Chandrojirao Angre and Others, . In the decision reported in Rupan Deol Bajaj v. K.P.S. Gill ( 1995 (2) KLT 830), the Supreme Court has held that a criminal complaint can be quashed by invoking the provisions of Sec. 482 of the Cr.P.C. under the seven categories of cases enumerated therein relying upon an earlier decision of the Supreme Court reported in R.S. Raghunath Vs. State of Karnataka and another, wherein after enumerating the seven categories of cases in which this Court is competent to exercise its inherent jurisdiction to quash the complaint. The apex court has struck a note of caution as follows:

We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.

In the decision reported in K. Karunakaran v. Nawab Rajendran, (1997 (2) KLT 15), a Single Judge of this Court following the above decisions held that wherein the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at the preliminary stage.

In these cases admittedly the investigation is at the embryonic stage. Though the investigating officer after registering the cases against the petitioners, had seized certain documents from the school including the acquittance register due to the filing of the above cases and obtaining stay from this Court, investigation has not proceeded any further. The question whether criminal breach of trust has been committed by the petitioners in these cases as alleged by the de facto complainants will largely depend upon the comparison of the handwriting and the figures in the acquittance register with the admitted writing of the petitioners and also whether there is alteration or correction in the acquittance register after examining the same by competent expert in the field. It is submitted by the Public Prosecutor that the documents could not be sent for comparison to the expert due to the stay obtained by the petitioners in these cases. Therefore, the petitioners have virtually stalled the investigation in these cases.

It is clear from the F.I. Statement given by the respective de facto complainants, copies of which are produced by the petitioners in these cases, that there are specific allegations constituting the ingredients of the offence punishable under Sec. 409 of the I.P.C. against the petitioners this Court cannot, at this stage, consider whether those allegations made by the de facto complainants will be proved against the petitioners at the stage of trial or not. The evidence to establish the offence alleged against the petitioners is to be collected during the course of investigation and adduced before the court at the time of trial to bring home the guilt of the petitioners in these cases. Though counsel for the petitioners vehemently argued that the conditions 5 and 7 mentioned in the decision of the Supreme Court reported in 1995 (2) KLT 830 (supra) are squarely applicable to the facts of these cases and the above proceedings should be quashed by this Court, it is not at all possible to accept the contention of the petitioners that the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the petitioners and that the criminal proceeding is manifestly attended with mala fide and/or the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the petitioners and with a view to spite them due to private and personal grudge. Those contentions cannot be accepted in these cases as there are no materials in support of those contentions. Absolutely no reason is alleged by the petitioners to show that the de facto complainants have fallen prey in the hands of the manager of the school who has got an axe to grind against the petitioners in these cases. The contention of the petitioners that there is inordinate delay in lodging the F.I. Statement against the petitioners in these cases, since the de facto complainants have retired from service and they have received the. provident fund amount due long back and this fact establishes that absolutely false and frivolous allegations are made against the petitioners with the deliberate malafide intention to harass them, cannot be a ground to quash the above criminal proceedings launched against them which are instituted within the period of limitation. Those facts are to be considered at the stage of evidence to arrive at a just finding regarding the guilt of the petitioners.

On a careful analysis of the entire contentions raised by the petitioners and scrutiny of the FI. statement given by the de facto complainants in these cases, I find that sufficient allegations are made against the petitioners to spell out an offence punishable under Sec. 409 of the Indian Penal Code prima facie and no grounds are made out by the petitioners to quash the prosecution proceedings launched against them in these cases.

The Crl. M.Cs. are dismissed accordingly.