SELVARAJ S/O. SANKARAN Vs. STATE

JUDGEMENT

(1.) Case in Crime No. 1202 of 2011 on the file of the respondent was registered for offences under section 406, 420, 477-A r/w 120-B IPC. The complaint was preferred by second respondent, the acting President of the South India Cine and TV Drivers Association, informing that the first accused as President, the second accused as Secretary and the third accused (since deceased) as Treasurer of the Association, wrongfully had drawn a sum of Rs. 11,00,000.00 from the Association's savings fund of about Rs. 1-1/2 crores on the pretext of advancing monies towards purchase of land at Nallore Nagar, Ulundurpet - Cuddalore District. The said advance was not evidenced by any receipt and there was no account regards the registration of the sale deeds of the said land or plotting out thereof. Instead of allotting plots to the members, plots have been sold to outsiders, no accounts there regards had been produced or submitted to audit and having dealt with a sum of Rs. 8-1/2 crores, a sum of Rs. 3-1/2 crores has been defalcated. The accounts of the Association for the period 2008-2010 had not been subjected to audit. When asked for accounts, the accused resorted to acts of violence, defamation and spreading falsehood. The complaint also informs of one of the accused having done away with documents using a pendrive. On completion of investigation, the final report informs that the committee comprising of 19 persons with first accused as President, second accused as Secretary and third accused (since deceased) as the treasurer, decided to allot a half ground plot free of costs to each of its members. Without obtaining the concurrence of the General Body, accused 1 to 3 withdrew a sum of Rs. 11 lakhs from the account of the Association, informed of having acquired an extent of 230 acres at Nallore Nagar near Ulundurpet and without disclosing any accounts or allotting free plots to the members, collected sums of Rs. 24,000.00 from some of them and sold the plots to outsiders for a total sum of Rs. 9-1/2 crores and enriched themselves in a sum of Rs. 2,84,88,958.00. The charge sheet informed of commission of offences by eleven persons along with the deceased erstwhile treasurer. Upon conduct of audit, it was found that the accused have done away with a sum of Rs. 2,84,88,938.00. The third accused has embezzled a sum of Rs. 2,00,000.00 and the fourth accused, without consent of the Association, has sold the plots purchased by the Association to outsiders. Hence, the accused were charged for offences under section 406, 420, 477-A r/w 120-B, 380 r/w 34 IPC. Challenging the same, revision petitioners have preferred discharge petitions in Crl.M.P. Nos. 2767 and 2768 of 2014 on the file of learned XVII Metropolitan Magistrate, Saidapet, Chennai, which were dismissed under orders dated 20.02.2015. There against, the present revisions have been filed.

(2.) Heard Mr. R. Shanmugasundaram, learned senior counsel for petitioners and Mr. C. Iyyapparaj, learned Government Advocate [Crl. side] for first respondent and Mr. V. Raghavachari, learned counsel for second respondent.

(3.) It has been submitted on behalf of petitioners that the South India Cine and TV Drivers Association and South India Cine and TV Drivers Welfare Society were two distinct entities. The Society was one registered under the Tamil Nadu Societies Registration Act. The Registrar of Society had found no wrong doing in the conduct of the Society. The contention of prosecution that the Society was a branch of the Association was not supported by any material. There were civil suits wherein injunction stood granted against the de facto complainant from acting in respect of the Society and hence, the de facto complainant lacked authority to file a complaint on its behalf. The Registrar of Societies had not ordered any audit of the Society. Audit had been done at the behest of the de facto complainant. The de facto complainant who was the President of the Association did not have control or domain over the accounts of the Society which continued to be under the control of the first and second accused. While so, the audit of the accounts of the Society wrongly had been ordered. The audit report simply informed that the auditors did not obtain sufficient audit evidence and hence, were expressing an adverse opinion. Therefore, it was clear that the audit reports were not based on the accounts maintained by the Society. The final report contended that offences have been committed in respect of the Association while the audit reports relied upon by the prosecution pertain to the Society. The Court below failed to note that the investigating officer had not seized or scrutinised the accounts of either the Society or the Association and had filed the final report even there without. Learned Magistrate, while admitting such position, fell into error in holding that the accounts could be produced even during trial. It was contended that in the absence of accounts of either the Society or of the Association there would be no material to make out even a prima facie charge.