M. Muthuswamy vs Special Police Establishment

This petition has been filed by A-1 in C.C. No. 92 of 1982 on the file of the C.J.M., Madurai, to quash the said proceedings.

The respondent viz, State represented by the Inspector of Police, S.P.E., C.B.I., Madras, laid chargesheet against the petitioner and five others

for offences under Ss. 120B, 193, 418, 419, 467, 471 read with 467 and 384 I.P.C. The allegations on the basis of which the above charges

were made are as follows. A-1 is a practising Advocate at Usilampatti A-2 is also an Advocate, practising at Madurai, A-3 is a teacher in the R.

C. Primary School, Sempatti, Usilampatti. A-4 is A-1''s father-in-law. A-6 is a henchman of A-1. All are close associates. During 1977-78,

Accused 1 to 6 were parties to a criminal conspiracy to cheat the Indian Overseas Bank, Palace Road, Madurai, and the heirs of late Sri Sadra of

Chettipatti in Usilampatti Taluk, in order to acquire the proceeds of the Bank accounts of late Sri Sadra by false personation and committing

forgery.

Sadra worked in Malaysia, saved Rs. 1,52,790.30 and transferred it to Indian Overseas Bank, Main Branch, Palace Road, Madurai, investing

a major portion in three fixed deposit receipts and the balance in savings bank, all in his names, and returned to his village in 1974.

Sadra had three elder brothers viz., Srinivasagam, Abraham and Ambrose. Srinivasagam predeceased his brother Sadra, leaving his son

Gnanasigamani. Sadra had lent some amount to Ambrose and when he tried to get back the amount, he was murdered on 28th April, 1975 by

Ambrose and his son Thanagaraj. Sadra died intestate, leaving Gnanasigamani, Abraham and Ambrose as his heirs.

One Masilamani, Clerk of the Church of South India Dioceason Office, Madurai, was having custody of the FDRs and the SB Account pass

book of Sadra. He was assisting the prosecution in the matter case and using one FDR, raised a loan of Rs. 2,000/- from one Gnanaraj and gave it

to Abraham. A-3 intervened and raises Rs. 3,000/- as loan from Rev. Fr. Alphonse to wipe off the loan incurred by Masilamani on a promote

executed by Abraham. A-3 planned to acquire the proceeds of the Bank accounts of late Sadra, and he evinced keen interest on the heirs of

Sadra who did not suspect A-3, A-3 managed to secure two FDRs and the SB Account pass book from Masilamani on the pretext that he would

make necessary arrangements to get the proceeds to the heirs. A-3 took the heirs to some lawyers viz., Mariappan and Ponniah, in the guise of

consultation. When the heirs of Sadra wanted to get back the documents from A-3, A-3 obtained a pronote in his favour for Rs. 10,000/- from

Gnanasigamani, Abraham and Ambrose, stating that he had incurred Rs. 15,000/- as expenditure. A-3 took Ghanasigamani to A-1 at Usilampatti

stating that A-1 would bear the initial expenses for getting Succession Certificate favouring the heirs of Sadra. A-1 affirmed the representation of

A-3 and called upon the heirs to execute a Power of Attorney in his favour to receive the succession certificate and proceeds of the Bank

documents. While Gnanasigamani and Ambrose obliged, Abraham did not. A-1 took A-2 into confidence and on the advice that power of

attorney executed by two of the legal heirs is not useful, A-1, got up a bogus, faked and forged power of attorney in favour of a fictitious person

by name Ambrose, son of Arulanandam of Usilampatti, purported to have been executed by the three legal heirs. A-1, in collusion with A-2, got

the necessary estate duty returns filed, with the signatures purportedly affixed by the three legal heirs and obtained necessary orders from the

relevant authority, all without the knowledge of the said heirs. Thereafter, A-1 obtained the three FDRs and the Bank pass book apparently after

the discharge of the loan to Gnanaraj on a promises to obtain Succession Certificate from the Court at the earliest. A-2 then filed an Original

Petition before the principal Sub-Court, Madurai, at the instances of A-1, and even without seeing any one of the legal heirs at any time. The

petition was returned for rectification of certain defects. A-2, without consulting the actual legal heirs, went to the Bank on 22-1-1978, got the

particulars and prepared fresh petition. A-1 obtained the signatures, and returned the petition and vakalat to A-2 with some signatures purported

to be that of the three legal heirs. A-2 filed the petition on 30-1-1978 in Court and it was numbered as O.P. No. 18 of 1978. A-2 got Rs. 4,359/-

from A-1 and remitted it towards stamp duty for obtaining succession certificate. In this connection, A-2 examined A-4 as Ambrose, one of the

legal heirs of late Sadra, and A-4 perjured before the Court as Ambrose. The Court issued a succession certificate in favour of the three heirs and

A-2 took delivery of the said certificate. Thereafter, Accused 1, 2, 4, 5 and 6 visited Indian Overseas Bank, Palace Roads, Madurai, on 20-7-

1978 and presented the claim forms duly filled up with forged signatures purported to be those of the three legal heirs. Accused 1 and 2 identified

Accused 4 to 6 as the three legal heirs mentioned in the Succession Certificate. The Accountant caused to be disbursed sum of Rs. 1,45,241.71 to

A-1, he being disclosed as the Power of Attorney Holder of the three legal heirs of the deceased Sadra. A-2, in pursuance of the said conspiracy,

obtained the said amount from the Bank by the aforesaid fraudulent acts in collusion with the other accused. A-1 further got a pronote for Rs.

20,000/- executed by Gnanasigamani in favour of A-5 and got it registered at Madurai on the false representation that the said amount was

required for meeting the initial expenses already incurred by A-5. By the above acts, the accused have committed offences as mentioned above.

This petition has been filed by A-1 to quash the proceedings, on the ground that the Inspector of Police, SPE, has no authority to investigate the

case and the above proceedings are illegal. It is submitted that under S. 3 of the Delhi S.P.E. Act, the Central Government may by notification in

the official gazette, specify the offences or classes of offences which are to be investigated by the Delhi S.P.E. Act and it has not authorised the

respondent herein to investigate a case against a private individual. Further, under S. 6 of the said Act, the consent of the State Government is a

condition precedent to register and investigate the cases against private individuals. No such consent has been granted by the Tamil Nadu

Government to the respondent herein to investigate cases against private individuals. Yet another contention is that the complaint was filed before

the learned Subordinate Judge who did not conduct preliminary enquiry for coming to a conclusion whether the giving of complaint is expedient in

the interest of justice and the records furnished to the accused do not show that the said procedure has been followed. Further, the learned Judge

did not give any opportunity to the petitioner before even filing the above complaint and the learned Judge erred in handing over the complaint to

the Investigating Officer without filing the same before court. The learned counsel confined his arguments only to these contentions, though many

other contentions were raised in the petitions.

As regards the contention that the respondent is not authorised to investigate a case against a private individual, Mr. Sriramulu, learned counsel

appearing for the respondent, drew my attention to Lr. No. SC/3056-1/81 dt. 20-11-1981 issued by the Commissioner and Secretary to

Government, Home (SC) Department, Government of Tamil Nadu, wherein it is stated as follows :

Sir,

Sub : Police - Criminal Cases - Investigation by Central Bureau of Investigation - Consent of Government of Tamil Nadu under S. 6 of the Delhi

Special Police Establishment Act.

Ref : 1. No. 6/45/56-AVD of Ministry of Home Affairs Government of India dt. 6-11-1956 with Notification No. 7/5/55-AVD dt. 6-11-1956.

D.O.Lr. No. 321/5/72-AVD (III) dt. 5-6-72, from Thiru Ram Niwas Mirdha, Minister, Department, of Personnel, Cabinet Secretariate, Govt.

of India, addressed to Chief Minister of Tamil Nadu.

Lr. Ref. No. 59937/Pol. IV/76-2 dt. 18-5-1976.

In the letter 3rd cited, the Government of Tamil Nadu have agreed to the members of the Delhi Special Police Establishment exercising power and

jurisdiction within the State of Tamil Nadu, as originally intimated in this Government letter M.S. No. 188, Home, dt. 23-1-1957, and other

subsequent letters issued from time to time on the subject.

The Government have examined the question whether the consent given in May 1976 would require modification. In the D.O. Letter dt. 5-6-72,

2nd cited, it has been stated by the Government of India that the Special Police Establishment takes up suo motu only those cases which involved

either Central Government servants or officers belonging to Public Sector undertakings, under the Central Government or which involve financial or

other interest of the Central Government or Public Sector undertakings under the Central Government or offences under certain Central Acts with

the enforcement of which the Central Government is concerned. It has been stated by the Government of India that cases not falling under the

above categories, that is those mainly involving State Government employees or private persons can be taken up by the Special Police

Establishment with the concurrence or at the request of the State Government concerned.

In the light of the position stated in para 2 above. I am directed to state that in supersession of the consent given in the letter No. 59937/Pol

IV/76-2, Home, dt. 18-5-76, and others letters issued from time to time on the subject, the Government of Tamil Nadu hereby give their consent

under S. 6 of the Delhi Special Police Establishment Act, 1946, only in respect of -

(i) Cases involving either Central Government servants or officers belonging to Public Sector Undertakings under the Central Government, and

(ii) Cases involving financial or other interest of the Central Government or Public Sector Undertakings under the Central Government, in relation

to offences mentioned in the list of offences enclosed with the D.O. letter second cited.

In D.O. No. SC/3509-9/82 dt. 24-5-1983, the Commissioner and Secretary to Government, Government of Tamil Nadu, stated,

..... The provisions contained in S. 6 read with S. 5 of the Delhi Special Police Establishment Act, 1946 make it clear that the consent given under

S. 6 is for the investigation of any offence or classes of offences specified in a notification issued under S. 3 and it is not relatable to any accused

person. In the above circumstances, the CBI may investigate the offences in question.

From the above, it is clear that the respondent has got every authority to investigate this case against the accused for the various offences alleged.

Hence, I do not find any force in the said contention of the learned counsel for the petitioner. Learned counsel for petitioner also failed to

substantiate his contention on the face of the notification produced on behalf of the Central Government. The State Government was given notice

and the learned Public Prosecutor represented that such a notification, giving consent by the State Government to the respondent to investigate the

offence, has been issued. In the circumstances, this point is answered against the petitioner.

As regards the next contention of the petitioner''s counsel that under S. 340 of the Cr.P.C., the Court shall conduct a preliminary enquiry for

coming to the conclusion whether the giving of complaint is expedient in the interest of justice and should record a finding to that effect before

making a complaint in writing, and the accused also should have been given notice of the enquiry, the learned counsel drew my attention to the

decisions in P.S.S. Meyappa Chettiar Vs. Nagammai Achi, and Pakkiriswami Pillai, In Re, 60 MLW 705 : 1948 (49) Cri LJ 340 wherein it was

held that the Court should record a finding that the prosecution is expedient in the interests of justice. In the instant case, the learned Magistrate had

observed that the personation and perjury committed by Subbiah Thevar are seen to be the products of a conspiracy and that such personation

and perjury and forgery before the court need to be enquired into and justice vindicated. The Magistrate had not employed the same words

prosecution is expedient in the interests of justice"". But from the above observation of the Magistrate, it is clear that prosecution is necessary for

redressal of the grievances in the interest of justice. As such, it cannot be said that no finding has been given by the learned Sub Judge and

therefore the entire proceeding is vitiated.

My attention has been drawn to the decision in Sundararami Reddi v. Venkatasubba Naidu, (1958) 2 AWR 480 wherein it was held :

Failure by the Sessions Judge to use the actual words of the S. 476, namely, that it is expedient in the interests of justice that an enquiry should be

made, does not ipso facto make the order sanctioning prosecution of the appellant bad, if the language used makes it clear that the prosecution

was in the interests of justice.

This principle is applicable to the facts of the instant case.

The learned counsel for the respondent, Mr. Sriramulu, invited my attention to the decision in Varadarajulu Naidu Vs. Emperor, wherein it was

held :

The Court may, under S. 476, Cri.P.C., make the complaint on the application made to it or otherwise, and it need not hold a preliminary enquiry.

Notice to the person proceeded against is not essential.

In Nimmakanyala Audi Narrayanammam Vs. State of Andhra Pradesh, it was held that it is incumbent on Court before making complaint to

record finding that it is expedient in interests of justice to enquire into offence, and omission to record finding is not mere irregularity curable under

S. 357 but goes to the root of matter, and that person sought to be proceeded against must be heard before forming an opinion. I am in respectful

agreement with the principle laid down in the decisions of this Court cited above. Accordingly, I hold that no preliminary enquiry is necessary and

no notice need be given to the accused, in cases like the present one.

Learned counsel for respondent also submitted that under S. 341, Cr.P.C., the right of appeal is provided against the launching of complaint

under S. 340, Crl.P.C., and without exercising the said remedy, the petitioner is not entitled to invoke the inherent jurisdiction of this Court under

S. 482 of Cr.P.C., I find much force in the said contention of the respondent''s counsel.

It was brought to my notice that, in the instant case, as many as seven witnesses were examined and 15 independent charges were framed

against the accused. As such, it is proper for the accused to face the charge before the Trial Court than file the present petition for quashing.

The learned counsel for the petitioner further submitted that if the complaint for offences under S. 193, I.P.C. against A-4 is not maintainable,

then the entire case has to be thrown out. I do not find any merit in the said submission. In the instant case, there is not only false evidence given

but there is also impersonation and for cheating the Bank and the legal heirs of late Sadra. As already stated, the charges are independent and not

dependent upon the offence under S. 193, IPC alone, as contended by the learned counsel for petitioner.

After going through the petition and after hearing the arguments of the learned counsel for both sides and scrutinising the entire materials

available, I am of the view that this is not a fit case where the proceedings should be quashed. The materials on record do constitute prima facie

offence and it has to be tried by the Court below.

In the result, the petition fails and is dismissed.

Petition dismissed.