(Prayer : Plaint filed under Order IV Rule 1 of O.S.Rules r/w. Order VII Rule 1 of C.P.C., to pass a judgment and decree of,

                     (a) directing the defendants 1 to 3 to pay the plaintiff, a sum of Rs.1,70,24,187/- (Rupees One Crore Seventy Lakhs, Twenty Four Thousand and One Hundred and Eighty Seven Only) together with interest at 12% per annum from the date of plaint till the date of realization

                     (b) Permanent Injunction restraining the Defendants 4 to 6, from permitting the defendants 1 to 3 their men, agents, servants or any one acting under them, to withdraw any money respectively from the Account No.05310100027629, Bank of Baroda, SIET College Avenue Branch, Kannadasan Salai, Teynampet, Chennai 600 018; Account No.1178102000001038, IDBI Bank, Madipakkam Branch, No.2/55, Sahana Complex, Medavakkam Main Road, Kilkattalai, Chennai 600 117; Account No.200010818801, IndusInd Bank, Madipakkam Branch, No.23, Medavakkam Main Road, Madipakkam, Chennai - 600 091.)

1. This Civil Suit has been filed to direct the defendants 1 to 3 to pay the plaintiff, a sum of Rs.1,70,24,187/- (Rupees One Crore Seventy Lakhs, Twenty Four Thousand and One Hundred and Eighty Seven Only) together with interest at 12% per annum from the date of plaint till the date of realization and also a permanent injunction restraining the defendants 4 to 6, from permitting the defendants 1 to 3 their men, agents, servants or any one acting under them, to withdraw any money respectively from the Account No.05310100027629, Bank of Baroda, SIET College Avenue Branch, Kannadasan Salai, Teynampet, Chennai 600 018; Account No.1178102000001038, IDBI Bank, Madipakkam Branch, No.2/55, Sahana Complex, Medavakkam Main Road, Kilkattalai, Chennai 600 117; Account No.200010818801, IndusInd Bank, Madipakkam Branch, No.23, Medavakkam Main Road, Madipakkam, Chennai - 600 091.

2. Heard Mr.V.Kuberan, learned counsel for the plaintiff and Mr.Surya Senthil, learned counsel for D1 to D3 and perused the materials available on record.

3. The short facts pleaded by the plaintiff in the plaint are as follows :

The plaintiff is a Builder and Promoter engaged in property development and doing business through his business concerns by name M/s.Priya Constructions and Priya Promoters. The plaintiff's business enjoyed good reputation. One L.Sathyanarayanan, the deceased husband of the first defendant and late son of the second defendant was employed in the plaintiff's business concern as an Accountant from the year 1995. In view of the long acquaintance, he had gained the confidence of the plaintiff. The said L.Sathyanarayanan did not have any income except the salary paid by the plaintiff's Company. The said L.Sathyanarayanan has been entrusted with the responsibility of taking care of payments, receipts, purchases, accounting, taxation related matters by coordinating with the bankers and Chartered Accountant.

                     3.1. During the course of the business transactions, the plaintiff used to get the properties from the owners of the properties and get it registered in the name of the prospective purchasers of the flats and plots. The stamp duty and the registration charges have to be paid through Demand Drafts drawn in favour of the respective Sub-Registrar which is inclusive of banker's commission also. As the commission amount used to vary depending upon the Demand Draft amount, the plaintiff used to issue signed cheques mentioning 'YOURSELF' by leaving the amount blank and handing it over to his employee L.Sathyanarayanan and get the Demand Drafts drawn in favour of the respective Sub Registrar offices by filling up the commission amount properly and then process the registration in favour of the buyers. The said employee had taken advantage of the trust reposed on him by the plaintiff and filled the cheques by shooting up the amount above than what is actually needed. The demand drafts had been drawn one in favour of the Sub Registrar and another in favour of himself with regard to the excess money calculated by him through the exaggerated figures entered by him in the cheque. Thus, he siphoned off the money of the plaintiff and diverted the large amount to his accounts over the period of time and enriched him illegally.

                     3.2. The deceased L.Sathyanarayanan had even forged the signature of the plaintiff and written a huge sum of money and withdrew it from the account of the plaintiff and used it for his personal gains. The plaintiff did not suspect the bonafides of L.Sathyanarayanan till some time before the suit was filed. He came to know about the fraudulent acts only when doubts raised by the Auditor and the verification of accounts was conducted. The major chunk of the said amount siphoned off by the Accountant had gone to the third defendant Concern in which the deceased employee is interested. The plaintiff has got no connection with the third defendant and there is no need to do any money transaction with the third defendant. L.Sathyanarayanan failed to complete the accounting process and failed to file the income tax returns in time. Hence, the plaintiff had to file the income tax return for the year 2014-15 with a delay of one year by paying the penalty of Rs.3,00,000/-.

                     3.3. On verification of the office records of the plaintiff, he came to know that many records have been destroyed by the deceased Accountant. After coming to know about the fraudulent acts of L.Sathyanarayanan, the plaintiff questioned him and thereafter, L.Sathyanarayanan stopped coming to the office and switched off his mobile. The plaintiff had issued legal notice to L.Sathyanarayanan on 20.01.2017 calling upon him to return two mobile phones belonged to the Company and a Honda bike belonged to the plaintiff's Company. He also demanded some money illegally gained by L.Sathyanarayanan from his Company.

                     3.4. The deceased employee though assured to give back the money claimed by the plaintiff, he did not do so. After taking accounts, the plaintiff came to know that a sum of Rs.1,82,85,187/- has been siphoned off by L.Sathyanarayanan by making many forged and false documents. He himself has started a business under the name and style of "Pathy Meena Travels" by having more than 40 cars and acquired many movable and immovable properties not only in his name but also in the name of his family members. L.Sathyanarayanan died on 21.06.2017 by committing suicide and thereafter, the plaintiff has issued a legal notice to his legal heirs. Hence, the present suit has been filed by the plaintiff for recovery against the legal heirs of the deceased L.Sathyanarayanan and for permanent injunction.

4. The averments made in the written statement filed by the defendants 1 to 3 are in brief:

The deceased L.Sathyanarayanan who was the husband of the first defendant and the son of the second defendant, has been working under the plaintiff in M/s.Priya Constructions from the year 1995 and gained his confidence. L.Sathyanarayanan joined in the plaintiff's concern as a Clerk in the initial stage and later worked as a Supervisor. He used to supervise the sites. The second defendant is a Government employee and retired from service during May 2003. The first defendant married L.Sathyanarayanan in the year 2002 and they lived along with the second defendant at Perambur. The second defendant was working at NKT High School, Triplicane at the time of his retirement. L.Sathyanarayanan was the only son of the second defendant. The deceased L.Sathyanarayanan had two daughters. The property belonged to L.Sathyanarayanan has already been purchased by the second defendant in the name of L.Sathyanarayanan. The second defendant's wife died in the year 2012. The plaintiff also participated in the funeral ceremony of L.Sathyanarayanan's mother held in his native place.

                     4.1. The defendants 1 & 2 are not aware of the nature of transaction done by L.Sathyanarayanan for his own business. The defendants 1 & 2 have no direct knowledge about the averments made in the plaint. The defendants 1 & 2 did not receive any notice from the plaintiff. The allegations made against L.Sathyanarayanan are false. Several allegations made against a dead person and they are unacceptable. Only if L.Sathyanarayanan is available, he could have answered effectively. The plaintiff had not questioned about non-filing of the Income Tax Returns for the year 2014-15. L.Sathyanarayanan purchased the second hand car by obtaining loan from the Finance Company in the year 2004. Later on, he started his own travel company by purchasing more cars. Due to the work burden and pressure, L.Sathyanarayanan was not able to take care of his own travels directly and therefore, he decided to leave the job to take care of his own business. The second defendant is not the class - I legal heir of the deceased L.Sathyanarayanan and he is not the beneficiary. The claim made by the plaintiff is baseless and hence, the suit should be dismissed.

5. On the basis of the above pleadings, the following issues are framed for consideration in the suit for trial:

                     "1. Whether the plaintiff is entitled for recovery of a sum of Rs.1,70,24, 187/- (Rupees One Crore Seventy Lakhs Twenty Four Thousand One Hundred and Eighty Seven Only) together with interest from the date of plaint till the date of realization?

                     2. Whether the plaintiff is entitled to a decree of permanent injunction restraining the defendants 4 to 6 from permitting the defendants 1 to 3 to withdraw any amount from the Bank Account of late L.Sathyanarayanan?

                     3. To what other reliefs, the parties are entitled?"

Discussion:

6. The Plaintiff who is a proprietor of M/s. Priya Constructions, has filed this suit for recovery of money along with the relief of permanent injunction against the Defendants 1 to 3 on the allegations of fraudulent misappropriation of money committed by the deceased L.Sathyanarayanan. The first defendant is the wife of the deceased L.Sathyanarayanan and the second defendant is his father. The third defendant is said to be a business activity carried out by the deceased L.Sathyanarayanan. It is alleged by the Plaintiff that the deceased L.Sathyanarayanan was employed as a staff under him and had been looking after the accounts and other financial transactions. By taking advantage of such a position, the deceased is said to have siphoned off the business funds of the plaintiff by committing the criminal acts of forgery, cheating and criminal breach of trust and utilized it for running the third defendant travel agency.

7. The fact that the deceased L.Sathyanarayanan was employed under the plaintiff is not denied by the defendants 1 and 2. The deceased was a confidentee of the plaintiff as he was initially appointed by the plaintiff in the year 1995. In view of the long acquaintance and confidence, the plaintiff who is a builder and promoter, has entrusted the financial management concerning the business with the deceased. The deceased L. Sathyanarayanan was in charge of payment receipts, purchase accounts and taking care of tax related matters by coordinating with the bankers and with Chartered Accountants. Though the deceased L.Sathyanarayanan is said to have enjoyed the confidence of the plaintiff, at some point of time, the plaintiff came to know that the deceased had damaged the trust placed on him and withdrew huge sums of money of the plaintiff and used it for his personal gains.

8. The plaintiff who has been examined as P.W.1 has stated in his evidence about the modus operandi adopted by the deceased to siphon off the business funds. He has stated that the property development business carried out by the plaintiff involves a lot of property transactions. As lot of plots and buildings were purchased by the customers of the plaintiff, they are liable to pay stamp duty and registration charges to the plaintiff. The plaintiff in his capacity as a vendor was taking care of the registration and the deals of transactions. From and out of the money deposited by the purchasers, payments are needed to be made to the Sub Registrar Office towards stamp duty and registration charges. As the deceased was taking care of the financial transactions, the plaintiff was in the habit of issuing "YOURSELF" cheques to the deceased by leaving the amount blank. These blank cheques were given to the plaintiff in order to enquire with the bank with regard to the commission charges in respect of various commission charge payments for which Demand Drafts are needed to be taken for various amounts.

9. During such course, the deceased L.Sathyanarayanan was in the habit of filling up the amount in the cheques according to his own whims and diverted the funds to his third defendant travel agency by taking the demand drafts for payments to his own creditors and others. In short, the deceased had taken out more amounts from the accounts of the plaintiff than what was actually needed to be paid to the Sub-Registrar office through demand drafts. In order to avoid suspicion, the deceased was in the habit of filling up the amounts in odd numbers or fractions instead of showing them as rounded off figures.

10. Ex.P3 is the statement showing the list of details of the funds transferred from the plaintiff's account and Ex.P4 is the list showing the party wise transfer of funds diverted from the plaintiff's account. Ex.P5 is the copy of banker cheque obtained from the plaintiff's bank. Ex.P1 is the attendance register signed by the deceased L.Sathyanarayanan and that has been produced to show that the deceased had been working under the plaintiff in his capacity as Accountant.

11. It is claimed by the defendants 1 and 2 that the deceased L.Sathyanarayanan was not taking care of the accounts branch, though he was employed under the plaintiff. However, the defendants did not state what other activities or responsibility was entrusted to the deceased while he was working under the plaintiff. The first defendant was examined as D.W.1 and she has stated in her evidence that her husband L.Sathyanarayanan was employed with the plaintiff, but he is not alive today and hence, the alleged transactions are not known to her. However, she had stated during the cross examination that her husband never worked as an accountant, but he was engaged only as a supervisor in the plaintiff's company.

12. As a matter of fact, the deceased L.Sathyanarayanan did not have any educational qualification relating to Civil Engineering, but he was only a B.Com graduate. If D.W.1 is not able to say about the functions carried out by her husband during his employment with the plaintiff, it is also not possible for her to assert that he was working as a Supervisor. As the deceased had B.Com qualification and he has affixed his signatures in Ex.P2 cash vouchers, it is not difficult to conclude that the deceased had been involved in accounts during the relevant point of time with the plaintiff. His position as Accountant also commensurates with his educational qualification.

13. It is claimed by the defendants 1 and 2 that there are some variations between the copies of Ex.P2 and the originals. But, the originals was placed and marked as Exs.P1 and P2 and the Court is not relying upon the photocopies. The original documents which are brought on record alone can be looked into by the Court. If photo copies has been received as a secondary evidence, then the defendants 1 and 2 are at liberty to confront the same with originals and disprove its veracity. As the original documents themselves have been marked as Exs.P1 and P2 series and that too, for the limited purpose of proving that the deceased had worked as Accountant and carried out related functions, I find no difficulty to accept those documents as proof to show that the deceased was working as an Accountant with the plaintiff.

14. With regard to the allegation of misappropriation of whopping sum of Rs.1,70,24,187/-, the plaintiff depends on Exs.P3, P4 and P5 which are the statements showing the list of various transactions, on which, funds have been transferred from the plaintiff's account. Ex.P5 is a copy of the banker cheque obtained from the plaintiff's bank certified by the bank officials. During the cross examination of P.W.1 in respect of Ex.P2 voucher, it is stated that one Saravanan would prepare the salary bills during the absence of the deceased L.Satyanarayanan. As Saravanan is also said to be the another Accountant, it is quite possible that he could have prepared the salary bills and vouchers in the absence of the deceased L.Sathyanarayanan. What is more significant is that, most of the vouchers in Ex.P2 were prepared by Saravanan and that has been admitted by P.W.1 also in his evidence.

15. Whatever may be the case, there are also documents which show the signature of the deceased L.Sathyanarayanan to prove that he was also involved in the accounts and getting cheques from the plaintiff. Since serious allegations are made against the deceased L.Sathyanarayanan, the plaintiff has got huge burden to prove each of the transactions and to bring out and prove that fraud has been committed by the deceased to swindle the funds of the plaintiff's company by filling up the cheques with inflated figures. But, the list of transactions shown in Exs.P3 and P4 are not substantiated with the evidence of the banker or the auditor who helped the plaintiff to prepare the same. Because, the plaintiff has stated in his evidence that he came to know about the scandalous acts of the deceased only through the auditor's report. As the plaintiff's auditor had verified the accounts and informed the plaintiff about the scandal and the consequential loss of money, it would have been appropriate, if the auditor was examined as a witness in order to substantiate the same.

16. According to the evidence of P.W.1, he came to know about the scandals during the account year 2014 -15. The deceased L.Sathyanarayanan is said to have been an employee of the plaintiff from the year 1995 and he was involved in various transactions. The auditor who had verified the accounts, would be an appropriate person to depose evidence on this aspect and to throw more light on the allegations of misappropriation. Only with his evidence, the Court can appreciate the plaintiff's case in a better manner and arrive at a conclusion about the misappropriation and the quantum for the purpose of granting the relief as prayed.

17. The plaintiff has chosen to send Ex.P6 notice dated 20.01.2017 to L.Sathyanarayanan. In the said notice, it is alleged that the deceased had defeated the confidence reposed on him and due to his failure to coordinate with the Accountants, various mandatory papers like TDS returns, etc., could not be filed in time. When he was questioned about that, the deceased stopped coming to office. As the deceased abandoned the work without intimation and he was evasive, he was asked to surrender the company phone and bike retained by him along with other advances along with the unaccounted sum of Rs.50,000/- withdrawn by him. Thereafter, the deceased L.Sathyanarayanan came to office and handed over the mobile phone and bike and undertaken to settle the accounts. Thereafter, he did not turn up.

18. While calling upon the deceased to hand over the assets of the company through Ex.P6 notice, it is stated by the plaintiff that it was only a preliminary investigation. So, it only appears that the investigation of the accounts was being carried out and only thereafter, the entire scandal came to light. Consequently, a criminal complaint has also been registered and it is evidenced through CSR receipts which was marked as Ex.P7. Ex.P8 is the notice sent to the defendants 4 to 6 and the Branch Manager of TNSC Bank. By issuing the said notice, the plaintiff requested the above bankers not to permit any withdrawal from the account of the deceased in view of the discovery of fraud. In the said notice, it is stated that the money swindled from the plaintiff's account has been diverted to the following account holders which is inclusive of the third defendant and the deceased L.Sathyanarayanan along with one T.Sulochana. For a better clarity, a table showing the above details is extracted hereunder: