K SARBOJI Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) IN this writ petition, the petitioner has prayed for the issue of a writ of certiorarified mandamus calling for the records of the second respondent relating to the proceedings in C. No. 199904/a. P. 1/82 dated 26th November, 1983 by which he dismissed the appeal of the petitioner against the order of his dismissal and quash the same. The petitioner was holding the post of a Reserve Sub Inspector attached to Home Guard Office, City Home Guards, since 1971. By a charge memo dated 14th December, 1973 issued by Thiru P. A. Narayanaswamy, the Deputy Superintendent of Police, the following two charges were framed against the petitioner.

(2.) THE learned counsel for the petitioner first contended that charge No. 1 referred to earlier formed the subject-matter of a criminal prosecution for offences under S. 409. I. P. C. read with S. 34, I. P. C. and 409 I. P. C. read with S. 109 I. P. C. against the petitioner and one Thiru Jayaraj and that though the petitioner as well as Thiru Jayaraj were convicted under S. 409 I. P. C. read with S. 34 I. P. C. and S. 409 I. P. C. read with S. 109 I. P. C. respectively, yet on appeal before the Sessions Court in Criminal Appeal Nos. 219 of 1980, 223 of 1980 and 230 of 1980, the petitioner and Jayaraj were acquitted after finding that Thiru Narayanaswamy, examined as P. W. 1, appeared to have burned the stock book and that therefore, Charge No. 1 cannot at all be sustained against the petitioner. On the other hand, the learned Additional Government Pleader submitted that the criminal prosecution related to breach of trust in respect of 2364 pairs of shoes entrusted to the petitioner and Jayaraj and that had nothing whatever to do with Charge No. 1 framed against the petitioner and therefore the petitioner cannot claim that by reason of his acquittal in the appeal, Charge No. 1 cannot be sustained against him. It was also further pointed out by the learned Additional Government Pleader that before the criminal court there was no evidence to show what happened to the stock books on 2nd August, 1973, while in the course of the enquiry conducted against the petitioner, there was clear evidence to show that the stock book had been taken by the petitioner and, therefore, the petitioner cannot claim that charge No. 1 is unsustainable.

(3.) A perusal of the judgment dated 10th September, 1980 in C. C. No. 10063 of 1979 before the Fourth Metropolitan Magistrate, Saidapet, shows that the petitioner and Thiru K. Jayaraj were charged for offences under S. 409 I. P. C. read with S. 34 I. P. C. and S. 109 I. P. C. for committing breach of trust with reference to 2364 pairs of shoes and abetment of the same by Thiru K. Jayaraj. P. W. 1 examined on behalf of the prosecution in that case was Thiru Narayanaswami. On a consideration of the evidence, the learned 4th Metropolitan Magistrate, Saidapet found the petitioner and Jayaraj guilty under S. 409 I. P. C. read with S. 34 and 409 I. P. C. read with S. 109 I. P. C. respectively and convicted them to rigorous imprisonment for two years and 15 months respectively. Against the conviction the petitioner preferred C. A. No. 223 of 1980, while, Thiru Jayaraj likewise appealed in C. A. No. 210 of 1980. While disposing of the appeals, the learned Sessions Judge in the course of pars 7 of his judgment observed that considerable doubt was thrown on the truth of the prosecution case owing to the nonproduction of the stock-book and that Thiru Narayanaswami examined as P. W. 1 in the course of the prosecution appeared to have burned the stock book. This observation of the learned Sessions Judge is the basis of the first contention of the learned counsel for the petitioner. However, it is seen from the judgment of the learned Sessions Judge that he was concerned with finding out whether the prosecution had established the charge of criminal breach of trust against the petitioner. In doing so the learned Sessions Judge took the view that the non-production of the stock book would weaken the prosecution case and would render it improbable as well and it was in this context that the learned Sessions Judge also stated that Thiru Narayanaswami, examined as P. W. 1 appears to have burned the stock book. This observation made by the learned Sessions Judge was made while considering the propriety of the conviction against the petitioner and Thiru Jayaraj. Neither the trial court nor the appellate court at that stage was in any manner concerned with the question whether the petitioner had caused the disappearance of the stock book of clothing articles together with the acquittance rolls which formed the subject matter of Charge No. 1 levelled against the petitioner. The subject matter of the prosecution and the nature of the charge framed against the petitioner were not the same. In other words, there was no identity of facts of charges in the criminal prosecution taken out against the petitioner and the departmental enquiry initiated against him and therefore, the petitioner cannot, by relying upon the observations of the learned Sessions Judge, claim that Charge No. 1 framed against him is wholly unsustainable.