TaxTMI 
TaxTMI 
2022 (11) TMI 1501
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....Prosecutor For R2 in CRL.O.P.No.31323 of 2019 : Mr.N.Ramesh COMMON ORDER CRL.O.P.Nos.30357 & 31323 of 2019 have been filed to quash the proceedings in C.C.No.14 of 2019, pending on the file of the Additional Special Court for Trial of Criminal Cases Related to Elected Members of Parliament and Members of Legislative Assembly, Chennai/trial Court in so far as the petitioners/A2 & A6 are concerned. 2.CRL.R.C.Nos.147 & 527 of 2020 have been filed by the petitioners/A4 & A5 to set aside the order, dated 20.12.2019, made in Crl.M.P.Nos.17829 & 20625 of 2019 in C.C.No.14 of 2019 by the learned Assistant Sessions Judge, Additional Special Court for Cases Related to Elected Members of Parliament and Member of Legislative Assembly of Tamil Nadu, Chennai/trial Court. 3.Since all the petitions are arising out of C.C.No.14 of 2019, this Court disposes all the petitions by way of common order. Since the petitioners herein are 2 nd , 4 th , 5 th & 6 th accused in C.C.No.14 of 2019, for the sake of convenience and clarity, they are referred to, as per their rank, in the charge sheet. 4.Gist of the case in C.C.No.14 of 2019 is as follows:- (i)The respondent Police registered a case in Cr....
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....543A to M.S.Jaffar Sait, I.P.S., and it was recommended by LW6- R.Sellamuthu, former Secretary, Housing and Urban Development Department, Chennai and approved by A6 on 04.04.2008 by G.O.Ms.No.370, dated 04.04.2008 of H & UD Department, plot No.543A to the extent 3457 sq.ft in Kamarajar Nagar, Thiruvanmiyur was allotted to M.S.Jaffar Sait as well as another plot to A5. (iii)In furtherance of common intention, A3-K.Murugaiya, Executive Engineer without the knowledge of his superiors, converted the seven plot layout segment in survey No.76 part, Kamarajar Nagar, Thiruvanmiyur into a six plot layout scheme for the convenience of A1 and A5 for a joint venture of construction and got CMDA approval. After the revised layout of six plot in the same survey number, without cancellation of the earlier allotment of 3457 sq.ft., in plot No.543A and without any fresh application, on the advice of LW7 created another note file suggesting to allot plot No.540 with an area of 4763 sq.ft to M.S.Jaffar Sait and it was signed by LW6 and approved by A6 and G.O.Ms.No.429, dated 23.04.2008 of H & UD Department was issued. Later, on 30.04.2008, M.S.Jaffar Sait gave application for cancellation of the sai....
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....nally aiding to allot the plots to A1, A2 and A5. The above said acts of all the accused constituted the offence punishable under Sections 120(B) & 409 IPC and Sections 13(2) r/w 13(1)(c) and (d) of the Prevention of Corruption Act, 1988 and 109 IPC. (v)The sanction for prosecution were obtained from the competent authorities for A3 and A6. Since A4 retired from service, no sanction required. In respect of M.S.Jaffar Sait, after completion of investigation, since he was an All India Service Officer, the sanction for prosecution was sought from the Home Secretary, Ministry of Home Affairs, North Block, New Delhi/competent authority. Even after lapse of more than a year, the sanction order not received by the respondent Police. Hence, after getting opinion of the then Advocate General of Tamil Nadu, charge sheet has been filed against A1 to A7 before the trial Court. The trial Court took the case on file as C.C.No.25 of 2013. In the meanwhile, the Home Secretary, Ministry of Home Affairs, North Block, New Delhi declined sanction for prosecution against M.S.Jaffar Sait. Thereafter, M.S.Jaffar Sait filed Crl.O.P.No.13711 of 2019 before this Court to quash the proceedings against him a....
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....the general power of attorney was executed in favour of A7, that to for a portion of undivided share of the plot No.540. There was no pecuniary loss suffered in any form either by the TNHB or the Government and hence, no complaint of any sort was lodged either by the TNHB or the Government. (ii)He further submitted that the case came to be registered on the complaint of the defacto complainant Shankar, who was employed as Assistant in the Directorate of Vigilance and Anti Corruption Department, who stole the vital documents and particulars from the department, for which, action against him was taken, which offended him to lodge the complaint against A2. Earlier, on the same set of facts, a complaint was lodged by one Advocate Pugalenthi and the same was closed. Hence, the present complaint is a motivated one with vengeance to spite venom for the action taken by A2's husband M.S.Jaffar Sait. He further submitted that ever since the issuance of G.O.Ms.No.1574 H & UD Department, dated 24.12.1991 for the allotment of 15% of the TNHB plots under GDQ, more than 10,000 allotments made by TNHB. Due to adverse publicity given for the transaction, the petitioner send a request, dated 18....
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....A2's husband. The respondent Police knowing very well about the said order, suppressing the same, filed the charge sheet before the lower Court on 02.09.2013. Even five years thereafter, the respondent Police failed to inform the concerned Court about the declination of sanction of prosecution against A2's husband. Only on 10.08.2018, a memo along with the said order was filed before the lower Court. This Court, on considering the rejection of sanction for prosecution against A1, quashed the proceedings in so far as A2's husband M.S.Jaffar Sait, by order, dated 23.05.2019 in Crl.O.P.No.13711 of 2019. Further, case against A3 was quashed by this Court in Crl.O.P.No.6824 of 2017, dated 24.10.2019 observing that there is no loss to the TNHB or the Government or any one in any form. Aggrieved against the same, the respondent filed an appeal before the Hon'ble Apex Court in S.L.P(Criminal)Diary No.8255 of 2021 and the same was dismissed on 01.10.2021 confirming the order of this Court, dated 24.10.2019. (iv)He further submitted that no witness stated about A2 abetted or aided any one to get the allotment order in her name. A2 paid the market value price and obtained the....
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....sale consideration to TNHB and later, she requested for cancellation of the allotment in her name, which was cancelled and subsequently, on the request of A2, wife of M.S.Jaffar Sait, the plot No.540 was allotted to her vide G.O.(2D)No.143 and she paid enhanced price of Rs.1,26,60,500/- to TNHB. It is to be seen that A2's daughter paid the sale consideration of Rs.1,07,77,008/- and when the allotment was cancelled, on her request, a sum of Rs.14,03,040/- was deducted towards penal charges by TNHB and only a sum of Rs.93,73,968/- was refunded by TNHB. The amount for selling the plot under GDQ was fixed by the Expert Committee of TNHB considering the market value. After selling the plot to the applicants, there is no quarrel or objection that the plots were sold lesser than the market value and the TNHB or Government suffered any loss in any form. The only allegation against A6 is that he conspired with other accused in allotting plots to A2 & A5 under GDQ. (iii)In this case, admittedly, the cases against A1 and A3 were quashed by this Court as stated above. It is seen that the request of A2 for allotment of plot made to the Chief Minister's Cell. A4 being the Secretary to t....
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....oceedings in R.C.No.1663/DC/CCB/Gen/2010, dated 20.08.2010. At the relevant period, A6 was the Minister for Housing and Slum Clearance and Revenue, he was busy with official works, he had no time left and he was always on the touring length and breadth of the state giving directions and instructions to the authorities. Further, he was concentrating on the functioning of the Revenue Department, which deals with benevolent schemes of the Government for the general public. In this case, A6 only concurred with the notings in the file put up on circulation for allotment of plots to A2 and A5. Like other four allottees, these two allotments under GDQ were given and nothing more. Picking and choosing these two plots alone is nothing but vindictive. Now, the prosecution attempted to project as though two of the witnesses have stated that A6 gave oral instructions to process the note files, that to, after several years. It is fundamental in criminal law the persons may lie, but not documents. Further, the documentary evidence would prevail over the oral evidence. For the reasons best known, the statements of witnesses are recorded as though A6 gave oral instructions to process the note file....
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.... After change of Government, a case in Crime No.7/AC/2011 registered on the complaint of the defacto complainant one A.Shankar. The defacto complainant, who himself is an accused of theft of sensitive data from the personal and official computer systems maintained in the Director of Vigilance and Anti Corruption Department. Due to which, the said A.Shankar was terminated from the service during the tenure of M.S.Jaffar Sait, I.P.S., who is shown as A1 in the FIR in Crime No.7/AC/2011. (ii)He further submitted that A4 being the Government servant at the time of commission of offence, sanction for prosecution under Section 197 Cr.P.C., is necessary, but in this case, no sanction obtained to prosecute A4. The charge sheet filed on the opinion of the then Advocate General of Tamil Nadu as 'Deemed Sanction' against M.S.Jaffar Sait. The Ministry of Home Affairs, Union of India vide order No.26011/33/2011-IPS.II, dated 29.11.2013 declined to grant sanction for prosecution. Recording the same, the case against M.S.Jaffar Sait was quashed by this Court in Crl.O.P.No.13711 of 2019, dated 23.05.2019. Aggrieved against the same, the defacto complainant A.Shankar preferred an appeal be....
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....e statement of LW4 confirmed that the request of A2, dated 02.06.2009 was handed over to A4 on 04.06.2009 and he was asked to process the same in consultation with A6. After following the procedure, G.O.Ms.No.143, dated 05.06.2009 was issued. The TNBH has sold the plot much higher than the marker price at the time of allotment and no loss of revenue to TNHB or to the Government. (iv)He further submitted that the respondent Police resorted to selective targeting of A5 and A2 while there were six plots allotted in the same layout under GDQ. The two plots were allotted to the family members of Thiru.Rajarathinam, I.A.S., (Retired) and Thiru.Devaraj, I.A.S., (Retired) and other dignitaries. In this case, there is no evidence to show that A4 had any part of criminal conspiracy with other accused. To attract the offence of conspiracy, there must be specific allegation that the accused persons joined together and committed the illegal act or an act which is not legal by illegal means. The only material projected against A4 is that he forwarded the request of A2 to the Principal Secretary, Housing and Urban Development Department with an endorsement 'the request may kindly be complied....
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....an Development Authority. The TNHB had written a letter to the Government that is difficult to protect the lands at Kamarajar Nagar, Thiruvanmiyur from encroachers and recommended the Government may take appropriate action to bring these plots under GDQ. Thereafter, the Secretary to the Government, Housing and Urban Development Department on 23.04.2008 issued fresh G.O.Ms.Nos.428, 430, 432, 431 & 427 for allotment of plots in Thiruvanmiyur to the applicants. A5 was allotted plot No.438 and the same same was intimated to him on 09.05.2008, vide letter No.AL3/1711/08. On 09.06.2008, the TNHB executed lease-cum-sale agreement in respect of the said plot No.538 and issued transfer certificate to A5 on 24.07.2008 and thereby, handing over the possession of the allotted plot to A5. Further, the TNHB issued a No Objection Certificate, dated 17.02.2010 to A5 and another allottee A2 for proceeding with construction in the allotted plots. Since there was adverse publicity given on the allotment of plots, on 16.03.2011, A5 made application to TNHB to cancel the allotment of the said plot to him and refund the sale amount paid by him. A5 wanted to save the reputation of his father/A4, his fami....
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....acy hatched between the accused. Now, the cases against A1 and A3 were quashed by this Court and thereby, the charge of conspiracy gets snapped and there is no conspiracy existing in this case. Since A5 being the son of the then Secretary/A4 to the former Chief Minister of Tamil Nadu, to spite venom against his father/A4, A5 has been made as accused in this case. The allegation against A5 is that he entered into the joint venture agreement with A7-T.Udhayakumar, Land Mark Construction, Chennai after purchasing the plot on outright from TNHB. Once the property is sold by TNHB, A5 has no restriction to deal with the property as he wishes. LW4- K.Phanindra Reddy, I.A.S., the then Secretary to Government, Housing and Urban Development Department, Secretariat and LW5-Surjit K.Chaudhary, I.A.S., the then Principal Secretary to Government, Housing and Urban Development Department admitted that there is no specific order/circular prescribing proof required for the claims as social worker or impeachable Honest Public Servant. In this case, A5 is a social worker, rendered yeoman social service during the Tsunami disaster. Contradicting the same, the respondent Police not produced iota of evi....
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....ant Nagar revised the seven plots in Thiruvanmiyur scheme to six plots scheme. After the revised layout six plots in the same survey number, without cancellation of earlier allotment of 3457 sq.ft., in plot No.543A and without any fresh application, another plot No.540 was allotted to M.S.Jaffar Sait vide G.O.Ms.No.429, dated 23.04.2009 of Housing and Urban Development Department. Later, on 30.04.2008, M.S.Jaffar Sait gave application for cancellation of the said allotment of plot and accordingly, it was cancelled. On 01.05.2008, Ms.Jenifer, daughter of M.S.Jaffar Sait gave application for the allotment of said vacant plot No.540 under GDQ and the same was allotted to her, who paid the entire sale price to TNHB. Thereafter, Ms.Jenifer gave application for cancellation of the above said plot allotted to her. Following the rules, the TNHB cancelled the allotment deducting penal charges and handed over the balance amount. Simultaneously, A2, the wife of M.S.Jaffar Sait gave application for allotment of said plot in her favour and it was immediately sanctioned under GDQ. Based on the letter of TNHB asking the Executive Engineer, Besent Nagar Division to handover the possession of the a....
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....gal means, in the absence of any power vested to him, made an endorsement with regad to GDQ allotment for TNHB plot, thereby facilitated and abetted A2 to get GDQ allotment of a plot which resulted in getting undue pecuniary gain of Rs.1,27,23,000/- to A2 and correspondinly, caused undue pecuniary advantage of Rs.1,69,75,000/- to his son A5. He further submitted that the Hon'ble Apex Court in the case of "Soma Chakravarty Versus State reported in (2007) 5 SCC 403" had held that 'at the time of framing of charges, the probative value of the materials on record cannot be gone into, and the materails brought on record by the prosecution has to be accepted as true. Before framing a charge the Court must apply its judicial mind on the materail placed on record and must be satisfied that the commission of offence by the accused was possible, whether in fact, the accused committed the offence, can only be decided in the trial.' Thus, the prosecution has produced prima facie materials against A2 and other accused. Further, the accused have been filing one petition or other before the trial Court and before this Court and thereby, successfully stalled the progress of the trial. ....
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....me to A6, which will not fall under discharge of official duty. Hence, the sanction for prosecution under Section 197 Cr.P.C., not required. He further submitted that the investigating officer collected sufficient evidence and materials to prove the case against A4 & A5. At the time of framing of charges, weighing the evidence of LW4 and LW5 is not correct. Mere reading between lines in the statement of LW4 and LW5 would never absolve A4 and A5 from the case of the prosecution. The statement of witnesses and documents ought to be considered in holistic manner in detail and thereafter only, the contention of A4 and A5 can be considered and the same can be done only during trial and not at this stage. The trial Court considering the submissions of A4 & A5 in a detailed manner, formulating question and giving proper answer referring to the statement of witnesses and the documents, dismissed the discharge petitions. The Hon'ble Apex Court in the case of "Rajib Rajan Versus R.Vijayakumar reported in (2015) 1 SCC 513" observed that 'even while discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeano....
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...., who was the Secretary to the then Chief Minister, the plots were allotted to them under GDQ. (ii)He further submitted that initially, the plot No.540 at Kamarajar Nagar, Thiruvanmiyur was allotted to M.S.Jaffar Sait on 04.04.2008 and thereafter, it was cancelled on 30.04.2008, again, it was allotted to his daughter Ms.Jenifer, a medical college student, who paid the entire sale consideration of Rs.1,07,77,008/- to TNHB. Due to wide adverse publicity for the transaction, immediately, on 30.04.2009, she requested for cancellation of the allotment in her name, which was cancelled on 08.05.2009 and subsequently, A2, wife of M.S.Jaffar Sait applied for allotment of same vacant plot No.540 under GDQ on 02.06.2009. A4 received the said application on 04.06.2009 and made authoritative endorsement and immediately forwarded the same to the witness Surjit K.Choudhry, I.A.S., with a direction to consult the then Minister/A6 in this matter. As per direction, A6 processed the note file and approved the same and by G.O.Ms.No.143 Housing and Urban Development Department, dated 05.06.2009, the said plot was allotted to A2. From the above, it is to be seen that A2 gave application for allotment o....
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....d under the old provisions of Prevention of Corruption Act, 1988 is also not proper. As per the amendment Act, 2018, there is no offence as projected against A6 under the Prevention of Corruption Act, 1988 is not proper. The alleged offences were committed during the period between 2008 and 2010. Hence, A6 is proceeded under the provisions of the Prevention of the Corruption Act, 1988, that is, before the 2018 Amendment made to the Act. In this case, the sanctioning authority, on satisfying with the materials, granted sanction. The trial Court based on the materials produced before it, took cognizance of the case and proceeding with the trial. Due to pendency of the above petitions, the trial is kept pending from the year 2019. Hence, he prayed for dismissal of this Quash Petition and sought direction for completion of the trial. 10.The submissions of the learned counsel appearing for the 2 nd respondent in Crl.O.P.No.31323 of 2019 are as follows:- (i)The learned counsel submitted that A6, the then Minister for Housing without verifying the requisite documents in allotting the plots under GDQ, approved plots to A2 & A5 and caused illegal pecuniary advantage to them. The wilful ne....
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....dered by A6 before exercising its discretion allotment of plots in favour of A2 and A5. Added to it, two prime witnesses given statement under Section 164 Cr.P.C., against A6. The case against A6 is that without verifying the genuineness of the application submitted by A2 and A5, he approved the same allotting the plots to them. This shows the blatant violation of procedures by A6 by approving plots to A2 and A5. The trial Court based on the materials produced before it, took cognizance of the case and proceeding with the trial. Due to pendency of the above petitions, the trial is kept pending from the year 2019. Hence, he prayed for dismissal of this Quash Petition and sought direction for completion of the trial. 11.This Court considered the submissions made by the learned Senior Counsels appearing for the petitioners in Criminal Original Petitions and Criminal Revisions and the learned State Public Prosecutor appearing for the State and the learned counsel for the 2 nd respondent in Crl.O.P.No.31323 of 2019 and perused the materials available on record. 12.A case in Crime No.7/AC/2011 was registered by the respondent Police against seven accused, for offence under Sections 120....
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....ing Board, Chennai filed Quash Petition before this Court in Crl.O.P.No.6824 of 2017 and this Court, by order, dated 24.10.2019, quashed the proceedings against him holding that 'no loss was sustained by the Tamil Nadu Housing Board and the allotment are of Government Discretionary Quota made through Government Orders.' Aggrieved against the same, the respondent filed appeal before the Hon'ble Apex Court in S.L.P(Criminal)Diary No.8255 of 2021 and the same was dismissed on 01.10.2021 confirming the order of this Court, dated 24.10.2019. Now, in C.C.No.14 of 2019 is pending against five accused, of which A2, A4 to A6 are before this Court, except A7. 14.A2 and A5 are allottees of plot Nos.540 & 538 at Kamarajar Nagar, Thiruvanmiyur, which was allotted and approved by A6 under GDQ. A4 was the Secretary to the then Chief Minister of Tamil Nadu and father of A5. A7- T.Udhayakumar is the Proprietor of Land Mark Construction, Chennai, who entered into a joint venture agreements with A2 and A5 for development of said two plots into commercial purpose. 15.The contention of A2 & A5 is that they were allotted plots under GDQ and to substantiate the same, G.O.Ms.No.143 Housing a....
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....es/flats are marked for the allotment of plots under the discretionary quota as per G.O.Ms.No.1574/H & UD Department, dated 24.12.1991. As per G.O.Ms.No.88/H & UD Department, dated 20.05.2003, the special workers and responsible persons in the society who have done excellent job in the field of arts/science/literature/economic/public administration/sports etc., are the categories among the eligible group to get allotment under 15% of GDQ. In this case, under what category, A2 and A5 got eligibility under GDQ is not known and there is no material to that effect. LW6-R.Sellamuthu, former Secretary, Housing and Urban Development Department stated about the conversion of seven plot layout segment in survey No.76 part, Kamarajar Nagar, Thiruvanmiyur into six plot layout scheme for the convenience of A2 and A5. In his first statement, he stated that on the advice of A4, he processed the applications of A2 and A5 seeking plots under GDQ. LW7- K.N.Krishnasamy Rao, Former Joint Secretary, Housing and Urban Development Department stated that he got oral instruction from A6 in processing the note file of A2 under GDQ. The Section Officer K.Hemalatha, Housing and Urban Development Department c....
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....ated the condition followed by the TNHB in allotting the house sites/houses/flats under 15% of GDQ. They further confirmed that there is clear case of violation of lease-cum-sale agreement condition No.4 by A2 and A5. The other witnesses in this case are house search witnesses and witnesses from the Sub Registrar Office and from the DGP office with regard to intimation and permission for acquiring immovable properties of M.S.Jaffar Sait. LW6- R.Sellamuthu, Former Secretary, Housing and Urban Development Department and LW7-K.N.Krishnasamy Rao, Former Joint Secretary, Housing and Urban Development Department gave statement under Section 164 Cr.P.C., which confirms the involvement of the accused in committing the offence. 20.It is to be seen that A2, wife of M.S.Jaffar Sait, applied for allotment of same vacant plot No.540 under GDQ on 02.06.2009. A4 received the said application on 04.06.2009 and immediately on the next day i.e., on 05.06.2009, A2 was allotted plot No.540 by A6 under GDQ as per G.O.Ms.No.143 Housing and Urban Development Deparment, dated 05.06.2009. Within four days, the plot allotment process in favour of A2 was done. This cannot be done unless there is predetermin....
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....d and concluded at the earliest since the offences under Prevention of Corruption Act are offences which affect not only the accused but the entire society and administration. 22.In this case, some of the accused are public servants, who are clothed with public duties to discharge duty in the interest of state. But in this case, it is not done. The corruption by a public servant is an offence against the State and the society at large. The Court cannot deal with cases involving abuse of official position and adoption of corrupt practices. Recently, in the case of "P.Dharmaraj Versus Shanmugam & Ors., in Special Leave Petition (Crl.)No.1354 of 2022", held as follows:- "44. It is needless to point out that corruption by a public servant is an offence against the State and the society at large. The Court cannot deal with cases involving abuse of official position and adoption of corrupt practices, like suits for specific performance, where the refund of the money paid may also satisfy the agreement holder. Therefore we hold that the High Court was completely in error in quashing the criminal complaint." 23.The Hon'ble Apex Court in plethora of decisions, had held that the pri....
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....iremath, (2019) 7 SCC 515, this Court observed and held in paragraph 25 as under:- "25. The High Court ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 CrPC. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. In State of T.N. v. N. Suresh Rajan [State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709, adverting to the earlier decisions on the subject, this Court held: (SCC pp. 721-22, para 29) "29. ... At this stage, probative value of the materials has tobe gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs t....
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....such that even if unrebutted, would make out no case whatsoever. SPOPE OF EXCERICSE OF REVISIONAL POWER AT THE STAGE OF CHARGE 75.In Munna Devi v. State of Rajasthan & Anr., (2001) 9 SCC 631, this Court held as under:- "3.....The revision power under the Code of Criminal Procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the first information report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged." 76.Thus, the revisional power cannot be exercised in a casual or mechanical manner. It can only be exercised to correct manifest error of law or procedure which would occasion injustice, if it is not corrected. The revisional power cannot be equated with appellate power. A revisional court cannot undertake meticulous examination of ....