K.Shanmugasundaram v. The Deputy Superintendent Of

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25.01.2018

CORAM:

THE HONOURABLE MR.JUSTICE P.N.PRAKASH Crl.O.P.(MD) No.21936 of 2016 1.K.Shanmugasundaram 2.Bagyalakshmi ... Petitioners / A1 & A2 vs.

State, rep.by The Deputy Superintendant of Police Vigilance and Anti-Corruption Sivagangai (Cr.No.5 of 2010) ... Respondent / Complainant PRAYER: Criminal original petition filed, under Section 482 Cr.P.C., to call for the records pertaining to the proceedings in Spl.C.C.No.1 of 2015, on the file of the Special Judge, Prevention of Corruption Act Cases, Sivagangai, Sivagangai District and quash the same.

For Petitioners : Mr.G.Karnan For Respondent : Mr.C.Mayilvahana Rajendran Additional Public Prosecutor

O R D E R

The first petitioner was the Joint Director of Horticulture and on 31.01.2007, he retired from service on superannuation. The second petitioner is his wife. After his retirement from service, the case in Crime No.5 of 2010 was registered by the Vigilance and Anti-Corruption Police, under Section 13(2) r/w 13(1)(e) of Prevention of Corruption Act, 1988 against the petitioners and the investigation was taken up. After completion of investigation, the respondent - Police have filed a charge sheet, for the offences under Section 13(2) r/w 13(1)(e) of the Prevention of Corruption Act, 1988 r/w Section 109 I.P.C., in Spl.C.C.No.1 of 2015, before the learned Special Judge for Prevention of Corruption Act Cases, Sivagangai, against the petitioners. Seeking to quash the same, the petitioners have filed the present criminal original petition.

2. Heard Mr.G.Karnan, learned counsel appearing for the petitioners and Mr.C.Mayilvahana Rajendran, learned Additional Public Prosecutor appearing for the respondent - Police and perused the materials filed in the form of typed set.

3. On a reading of the charge sheet, it is seen that the check period was from 01.01.1998 to 31.12.2005, during which the first petitioner was the Assistant Director of Horticulture at Pudukottai. It is the case of the prosecution that the assets disproportionate to the known source of income of the petitioners is Rs.22,08,436/-, which comes to 59.3%. This quash petition has been filed on the ground that the F.I.R., itself has been registered only after the retirement of the first petitioner, which is an abuse of process of law.

4. In the considered opinion of this Court, the delay in registration of the F.I.R., in a case of this nature cannot be said to be fatal, because it is common knowledge that the F.I.R., will be registered only after completion of the preliminary enquiry by the Vigilance Department and only after the Vigilance Department comes to the satisfaction that there are prima facie materials against the concerned public servant to register an F.I.R.

5. In State v. N.S.Gnaneswaran, reported in (2013) 3 SCC 594, the Honourable Supreme Court has held that conducting a preliminary enquiry before the registration of the case will not be fatal as the C.B.I.Manual provides for such an enquiry. Similarly, the Vigilance Manual that is followed by the State Police also provides for such enquiries to be conducted before registration of the case and therefore, delay in registration of the F.I.R., in a case of this nature cannot be said to be fatal.

6. The another ground raised by the learned counsel for the petitioners is that the second petitioner has paid income tax returns and therefore, the accused should be absolved of the criminal liability. This argument has been rejected by the Honourable Supreme Court in State of T.N. v. N.Suresh Rajan, reported in (2014) 11 SCC 709, wherein in Paragraph No.32.3, it has been held as follows:

"32.3. While passing the order of discharge, the fact that the accused other than the two Ministers have been assessed to income tax and paid income tax cannot be relied upon to discharge the accused persons particularly in view of the allegation made by the prosecution that there was no separate income to amass such huge properties. The property in the name of an income tax assessee itself cannot be a ground to hold that it actually belongs to such an assessee. In case this proposition is accepted, in our opinion, it will lead to disastrous consequences. It will give opportunity to the corrupt public servants to amass property in the

name of known persons, pay income tax on their behalf and then be out from the mischief of law."

7. It has also been contended by the learned counsel for the petitioners that there has been an erroneous calculation of the income and expenditure by the Investigation Officer. In Suresh Rajan's case (cited supra), the Honourable Supreme Court, in Paragraph No.32.4, has held as follows:

"32.4. While passing the impugned orders, the court has not sifted the materials for the purpose of finding out whether or not there is sufficient ground for proceeding against the accused but whether that would warrant a conviction. We are of the opinion that this was not the stage where the court should have appraised the evidence and discharged the accused as if it was passing an order of acquittal. Further, defect in investigation itself cannot be a ground for discharge. In our opinion, the order impugned suffers from grave error and calls for rectification."

8. That apart, in this case, the Trial Court has framed charges against the petitioners and the case is ripe for trial. In the light of the overwhelming materials against the petitioners, this Court is of the view that this is not a fit case where the prosecution initiated against the petitioners can be quashed.

9. In the result, the criminal original petition is devoid of merits and it is dismissed.

Sd/- Assistant Registrar(AE) /True Copy/ Sub Assistant Registrar To:

1. The Special Judge for Prevention of Corruption Act Cases, Sivagangai, Sivagangai District.

2. The The Deputy Superintendant of Police, Vigilance and Anti-Corruption, Sivagangai.

3. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

+1cc to Mr.G.Karnan , Advocate Sr.No.44277 KRK VB/SKN/RSK/SAR2/28.02.2018/4P/5C Crl.O.P.(MD) No.21936 of 2016 25.01.2018