M.MOHAN KENNEDY Vs. STATE

JUDGEMENT

(1.) This criminal original petition has been filed seeking to call for the records relating to Special Case No. 1 of 2017 pending on the file of the Chief Judicial Magistrate cum Special Judge, Nagercoil and quash the same as against this petitioner.

(2.) The case of the prosecution is that the petitioner was arrayed as A-1 in the SC No.1 of 2017. The allegation levelled against the petitioner is that while he was working as Executive Officer, Ganapathipuram Town Panchayat with an ulterior motive, he had misappropriated in collusion with John Jebakumar, Electrician, Ganapathipuram Town Panchayat, Kanyakumari District, had prepared bogus receipts in the name of Raj Agencies Colachel and Ebin Karungal during the tender of procurement of sanitary goods and without actually purchasing the sanitary goods, has created false records, as if the sanitary goods such as lime powder and bleaching powder were purchased during the period between September 2011 and March 2012 for Rs.80,390.00 and swindled the Government money through SBI, Colacheal Branch through bank account of one S.Jerold Jebaraj and the accused caused loss to the Government to a tune of Rs.89,640.00 and thereby M.Mohan Kennedy with John Jebakumar has committed the offence under Ss. 120(B), 465, 467, 468, 471, 477-A, 409 of IPC and Sec. 13(2) r/w 13(1) (c) prevention of Corruption Act, 1988. A case was registered on 8/4/2014 in Crime No.3 of 2014 and the respondent had investigated the matter and filed a charge sheet on 23/11/2017. The charge sheet was taken on file on 6/12/2017 and after completing the legal formalities, summon was issued to the petitioner on 2/1/2018 to appear before the Special Court cum Chief Judicial Magistrate, on 11/1/2018 and the copies were furnished under Sec. 207 of CrPC to the petitioner on 7/2/2018. Charges were framed on 14/3/2018. Then witness was summoned and PW.1 was examined on 25/4/2018 and issued summons to the other witnesses and the trial is in progress.

(3.) The petitioner has now filed the petition under Sec. 482, to quash the case against him on the ground that in this case the complainant and the Investigating Officer are one and the same, which is not permissible under law and therefor it would vitiate the entire proceedings. Further he submitted that in order to prosecute a Government Servant for the offences under IPC, previous sanction under Sec. 197 of CrPC from the State is mandatory and the Sanction accorded under Sec. 19 of PC Act cannot be equated with that of Sec. 197 of CrPC. Further, there is no link with the other accused to this petitioner and there is no material to show the involvement of this petitioner. Therefore, the case against the petitioner has to be quashed. In order to substantiate his contention, he placed reliance on the following judgments: (1) Asian Resurefacing of Roan Agency Pvt Ltd and anr Vs. CBI, in Criminal Appeal Nos.1375 and 1376 of 2013. (2) Megha Sing Vs State of Haryana, reported in AIR 1995 SC 2339, (3) Bhagwan Singh Vs The State of Rajasthan, reported in AIR 1976 SC 895, (4) Bhaskar Ramappa Madar and Ors Vs State of Karnataka in Criminal Appeal No.415 of 2002 and (5) Romesh lal Jain Vs. Naginder Singh Rana and Ors in Appeal (Crl) 691 of 2003 (5) Sanju Vs. State of Karnataka, Criminal Revision Petition No.2510 of 2011.