@JUDGMENTTAG-ORDER
S. Tamilvanan, J.@mdashThe question of law involved in all the criminal revision petitions are one and the same, hence, after hearing both sides in all the revision petitions, common order is being passed.
2. These Criminal Revision Petitions have been preferred u/s 397 r/w 401 Cr.P.C. The revision petitioner herein is the accused in the cases in C.C. Nos. 18/1998, 19/1998, 20/1998, 16/1998, 15/1998 and 17/1998, on the file of the Judicial Magistrate No. IV, Coimbatore.
3. It is an admitted fact that the petitioner herein had been Secretary of the Thalavaipattinam Primary Agricultural Co-operative Bank Ltd., for the period from 17.09.1991 to 06.12.1994. On the complaint give by the defacto complainant, the respondent had registered the case against the petitioner under Sections 408, 471, 477A and 467 IPC and charge sheet was also filed in the said case.
4. The criminal miscellaneous petitions were filed before the trial court by the petitioner/accused in the criminal case, seeking an order to proceed against one Mrs.Chitra Devi, an employee of the Co-operative Bank Ltd., along with the petitioner/accused and according to him, the said Chitra Devi be arrested on the ground that she had committed a non-bailable offence. The trial court, by the impugned orders, dated 30.10.2008, rejected the plea of the petitioner/accused and dismissed the petitions filed by him, hence, he has come forward with the criminal revision petitions.
5. The petitioner has averred that the said Chitra Devi, who was a clerk working under him in the Bank, was assigned with the work of issuing receipts towards the loans obtained by various persons and she was also attending collection of dues and outstanding of the loans from the members. According to the petitioner, he had to go out, for the collection of loan dues and to depend upon the said clerk. He has further stated that an enquiry u/s 81 of the Tamil Nadu Co-operative Societies Act, was ordered behind his back by the Deputy Registrar of Co-operative Societies, Erode and the enquiry officer submitted his report on 20.03.1995. Based on the report, the Deputy Registrar of Co-operative Societies, Erode lodged a complaint only against the petitioner on 12.06.1995 with the respondent police, which was registered in Cr.No.4/95 for the offence punishable under Sections 408, 471 and 477A IPC.
6. The respondent police laid the charge sheet on 29.11.1997 for the offences punishable under Sections 408, 467 and 477A IPC alleging that on 08.08.1994, 21.10.1994 and 22.10.1994, the petitioner had committed criminal breach of trust in respect of Fixed Deposit amounts belonging to the prosecution witnesses, Mr. Selladurai, Mr. Sreerangasamy and Mrs. Nallammal by forging the vouchers and falsifying the Day-Book entries to the tune of Rs. 32,000/-, Rs. 45,000/- and Rs. 25,000/- and Mrs.Selladurai for Selvi Agila (Minor) and Mr. Selladurai by forging the vouchers and fabricating the Day-Book entries to the tune of Rs. 4,000/- and Rs. 24,000/-. As per the prosecution case, the petitioner had forged vouchers and made false entries in the Day-Book to the tune of Rs. 22,916/- and Rs. 24,000/- and the forged vouchers relating to Mr. Thirumalaisamy, Mr. Ramasamy and Mr. Srirangasamy and Minor Selvi respectively and thereby the petitioner has committed the alleged offence.
6. The petitioner/accused has contended that during the course of trial before the court below, Mrs.Chitra Devi, who was examined as a prosecution witness deposed evidence on 20.01.2005, to the effect that she had prepared and filled all the loan applications, pro-notes of the depositors and other records and hence, according to the petitioner, she had involvement in the commission of the alleged offence. He has further averred that the depositors during the course of investigation in the criminal case, had alleged that the accused Chitra Devi had received all the Fixed Deposits in their names and therefore, according to the petitioner, Chitra Devi, clerk of the Co-operative Bank Ltd., should also face the trial along with the petitioner/accused, however, the court below, by order, dated 30.10.2008 has declined to allow the application on the ground that there was no sufficient reasons for implicating the said employee of the bank as co-accused and proceed with the trial.
7. The miscellaneous petitions had been filed by the petitioner/accused before the trial court u/s 319 Cr.P.C, seeking an order to proceed against Chitra Devi, who was only a clerk under him, on the ground that she appears to have committed the offence and that she might be arrested and prosecuted for the non-bailable offence. The petition was filed u/s 319 of Cr.P.C.
8. It is seen that Section 319(1) of the Code of Criminal Procedure reads as follows:
Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
As per Sub-section (2), where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the aforesaid purpose.
9. In the instant case, it is not in dispute that the petitioner herein had been Secretary of the Thalavaipattinam Primary Agricultural Co-operative Bank Ltd., for the relevant period. On account of the alleged malpractice, the case was registered against the petitioner under Sections 408, 471, 477A and 467 IPC and charge sheet was also filed against him. Admittedly, as the Secretary of the Co-operative Bank, the petitioner had not filed any complaint against the Clerk, Chitra Devi, prior to the date of registering the case against him. As per the statement given by the said Chitra Devi, as found by the impugned order of the court below, no case was made out against her. In a pending case filed against the petitioner, after the investigation and filing of charge sheet, the petitioner has filed this petition, u/s 319 Cr.P.C, to implead the clerk of the Bank, worked under him as accused, even without impleading her as a party in the miscellaneous petition. It is a settled proposition of law that without impleading a person, no order can be passed against a said person and the order so passed could not bind the person, who was not a party to the proceeding. The petitioner/accused had not impleaded the said Chitra Devi as a respondent in the petition, for the reasons best known to him.
10. In the instant case, already the petitioner was arrayed as accused. Without prima facie averments and materials, he cannot file a petition to implead a person, who was working subordinate to him as accused in the case. As per the prosecution case, the petitioner herein, as Secretary of the Co-operative Bank has signed in all the relevant documents, hence, he cannot shift the burden of committing criminal breach of trust and in the circumstances, the petitioner, who was the Secretary of the Co-operative Bank cannot shift the burden on his clerk. Had his allegations against the clerk was true and genuine, he could not have signed the documents and further, he had not filed any complaint independently against the said Chitra Devi, a clerk of the Bank before the police before the case was registered against him. Only after the case was registered against the petitioner, he has come forward with this petition to implead his clerk, Chitra Devi as accused, by raising allegation that she had committed all those offences, which cannot be accepted. As discussed earlier, filing a petition, without impleading her a party in the proceeding and seeking an order behind her back would show that the petition itself is not maintainable.
11. It is a settled proposition of law that u/s 319 Cr.P.C, it should be read, in consensus with Section 398 Cr.P.C as held by the Hon''ble Supreme Court in
12. The provisio to Section 398 reads that no Court shall make any direction under this Section for inquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause why such direction should not be made. In the instant case, the petitioner/accused, who was the Secretary of the Bank raised allegations belatedly, in order to shift the burden on a clerk, after the case was registered against him under various sections, though the investigation reveals that the petitioner/accused had to be prosecuted and punished for the alleged offence. On the aforesaid facts and circumstances, the plea of the petitioner/accused to prosecute Chitra Devi, who was a clerk under him is not legally sustainable.
13. Therefore, I could find no error or infirmity in the impugned orders passed by the Court below to interfere with the same, hence, the criminal revision petitions are liable to be dismissed.
14. In the result, all the criminal revision petitions are dismissed.
