(Prayer: Criminal Original Petition is filed under Section 528 of BNSS, 2023, to call for the records pertaining in C.C.No.288 of 2023 on the file of the Judicial Magistrate, Tirumangalam, Madurai District and quash the same so far as the petitioner concerned.)

1. This Criminal Original Petition is filed to quash the impugned final report in C.C.No.288 of 2023 on the file of the learned Judicial Magistrate, Tirumangalam, Madurai District, which was filed for the offences under Section 120B, 420, 465, 468 and 471 of IPC as against the petitioner.

2. The gist of the allegations in the final report is that the second respondent was born in Ireland; that she later acquired Indian citizenship; that in the year 1992, she started a Trust in the name of Teddy Trust; that the said Trust was involved in various businesses including export of wooden products, tailoring and was also involved in running a School; that between 2013 and 2019, she had to travel abroad frequently and hence, she appointed one Gavaskar/A1 as Resource Director and General Manager to take care of her business and handle the accounts of the Trust; that the said Gavaskar had committed misappropriation in many ways with the connivance and in conspiracy with 17 other accused; that the petitioner, who is arrayed as A11, was working as a Co-ordinator in the School run by the Trust. It is further alleged in the final report that all the 18 accused, some of whom were related to the first accused and employees in the business concerns of the Trust, had conspired and committed the aforesaid offences causing a loss of Rs. 14,58,34,679/- to the defacto complainant and her Trust.

3. The learned counsel for the petitioner would submit that the allegations as against the petitioner, even if accepted to be true, would not constitute the aforesaid offences; that the petitioner is a retired Headmistress of a Government High School; that at the request of the second respondent, the petitioner joined the School as a Coordinator due to her experience and expertise in the field of teaching; that she retired in the year 2019; and that she has been erroneously prosecuted for the alleged offences said to have been committed by the 1st accused.

4. The learned counsel would further submit that the main allegation against the petitioner is that the petitioner along with A10 was entrusted with a sum of Rs.2,85,78,140/-, [Rupees Two Crores Eighty Five Lakhs Seventy Eight Thousand One Hundred and Forty Only] which was the total fees collected from the students studying in the School; and that A1 as the General Manager and A2 as the Resource Director had received the said amount of Rs. 2,85,78,140/-; that A1 and A2 had prepared a false cash receipt voucher to make it appear that they had received only a sum of Rs.1,22,85,800/- and misappropriated the balance amount of Rs.1,62,92,340/- with the connivance of the petitioner; that there is no allegation that the petitioner had misappropriated the said sum; that one Assistant, by name Kartheeswari, even according to the prosecution, had signed in the cash voucher and it is only the first accused, who had misappropriated the said sum. The other allegation against the petitioner is that the petitioner had signed a cash voucher for Rs.10,00,000/- for the purpose of getting certain approvals for the School and that the first accused had misappropriated the said sum; and that even according to the prosecution, the petitioner had not misappropriated the said sum. He would hence submit that the impugned prosecution against the petitioner is an abuse of process of law.

5. The learned Government Advocate (Crl. Side) per contra would submit that there is an allegation of conspiracy; that all the 18 accused had entered into conspiracy to commit the offences of forgery, cheating and misappropriation and allowed the 1st accused to misappropriate a total sum of Rs.14,58,34,679/-; that the allegation against the petitioner is that she was working as a Co-ordinator in the school; that she had handed over cash to the 1st accused and had not verified as to whether the 1st accused had appropriated the funds in the manner it ought to have been done and hence, the impugned prosecution cannot be quashed. He would also submit that the co-accused have committed the destruction of the records and caused huge loss to the defacto complainant; that all these aspects cannot be adjudicated in a quash petition and pointed out that three witnesses viz., LW7, LW18 and LW19 have stated about the role played by the petitioner and hence, sought for dismissal of the quash petition.

6. The learned counsel for the defacto complainant reiterated the contents of the final report and would submit that there was a large scale fraud committed by all the accused, taking advantage of the absence of the defacto complainant in the country; that the question as to whether the petitioner was also involved in the conspiracy, which was done in secrecy, cannot be adjudicated in a quash petition and reiterated the submissions made by the learned Government Advocate.

7. As stated earlier there are 18 accused in this case. The 1st accused was appointed as General Manager in the Trust run by the defacto complainant. It is the case of the 1st accused that he was appointed to manage the Trust, its activities and the accounts in the absence of the defacto complainant. The Trust was involved in various business activities such as exports, manufacturing and tailoring units in the name of Teddy Exports, Murphy Products and Murphy Products Tailoring besides running a school under the name of Teddy Schools.

8. It is the case of the prosecution that the 1st accused had committed a total misappropriation of about Rs.14 Crores in the various business units run by the Trust and in the School, in collusion / conspiracy with the persons in-charge of those business enterprises and the school. The petitioner was working as a Co-ordinator in the School, wherein, it is alleged that a sum of Rs. 1,62,92,340/- and another sum of Rs.10,00,000/-, were misappropriated by the 1st accused from the school funds.

9. The prosecution had listed out 32 instances of misappropriation, falsification of accounts and cheating committed by the 1st accused and the other accused in the business enterprises and the school. The role played by the petitioner is listed as third and the twenty-fifth charge in the final report.

10. Admittedly, the petitioner has nothing to do with the alleged misappropriation said to have been committed by the 1st accused in respect of various other business enterprises run by the Trust.

11. The Hon'ble Supreme Court in the case of Natwarlal Sakarlal Mody v. The State of Bombay, reported in 1961 SCC OnLine SC 1, had held that the Court should not allow joint trial of a number of offences committed over a long period of time under the protective umbrella of all-embracing conspiracy, if those offences could be tried separately, as such a prosecution is likely to cause prejudice to the accused, besides, prolonging the trial itself. The relevant portion of the observations of the Hon'ble Supreme Court is as follows:

                  "17. This discussion leads us to the following legal position. Separate trial is the rule and joint trial is an exception. While s. 239 of the Code of Criminal Procedure allows a joint trial of persons and offences within defined limits, it is within the discretion of the Court to permit such a joint trial or not, having regard to the circumstances of each case. It would certainly be an irregular exercise of discretion if a Court allows an innumerable number of offences spread over a long period of time and committed by a, large number of persons under the protecting wing of all-embracing conspiracy, if each or some of the offences can legitimately and properly form the subject-matter of a separate trial; such a joint trial would undoubtedly prolong the trial and would be a cause of unnecessary waste of judicial time. It would complicate matters which might otherwise be simple; it would confuse accused and cause prejudice to them, for more often than not accused who have taken part in one of the minor offences might have not only to undergo the long strain of protracted trial, but there might also be the likelihood of the impact of the evidence adduced in respect of other accused on the evidence adduced against him working to his detriment. Nor can it be said that such an omnibus charge or charges would always be in favour of the prosecution for the confusion introduced in the charges and consequently in the evidence may ultimately benefit some of the accused, as a clear case against one or other of the accused may be complicated or confused by the attempt to put it in a proper place in a larger setting. A Court should not be overzealous to provide a cover of conspiracy for a number of offences unless it is clearly satisfied on the material placed before it that there is evidence to prove prima facie that the persons who committed separate offences were parties to the conspiracy and they committed the separate acts attributed to them pursuant to the object of the said conspiracy.”

12. Therefore this Court is unable to comprehend the manner in which all the 18 accused have been joined together in a single conspiracy to commit misappropriation in different enterprises. It is the specific case of the prosecution that the first two accused were involved in the misappropriation in all the enterprises. The petitioner cannot be attributed with the knowledge of the object of the conspiracy entered into between the first two accused to commit misappropriation in all the enterprises of the Trust run by the 2nd respondent.

13. Be that as it may. The charge as stated above against the petitioner is that the petitioner was working as a Co-ordinator in the school. The petitioner was entrusted along with LW18-Deepa and LW19-Mangaiyerkarasi, the funds to the tune of Rs.2,85,78,140/-, which was the total fee amount collected between 2015 and 2019. It is stated in the final report that the funds so entrusted with the petitioner and the two list witnesses, was handed over to the 1st and 2nd accused; that the 1st accused thereafter created a false cash receipt voucher making it appear that they had received only a sum of Rs.1,22,85,800/- which was signed by one Kartheeswari, cited as LW7 and misappropriated a total sum of Rs.1,62,92,340/-. There is no allegation in the final report that the petitioner had misappropriated or had shared the money misappropriated by the 1st and 2nd accused. There is no material even to allege that the petitioner had abetted the first two accused or entered into a conspiracy with them, in the commission of the alleged misappropriation. In this case, as stated earlier, three witnesses have been cited by the prosecution viz., LW7, LW18 and LW19 to speak about the transactions in which the petitioner is involved.

14. LW7-Kartheeswari, who had signed in the cash voucher making it appear that the 1st accused had received only a sum of Rs.1,22,85,800/- had not stated about her signing in the cash voucher. If LW7 is a witness, there is no reason why the petitioner should have been made an accused.

15. Be that as it may. LW18 and LW19, who are working as the Headmistress and Office Clerk, respectively in the school speak about the fact that they had handed over a sum of Rs.2,85,78,140/-, collected as fees to the Accountant (A10) one Arasi and the petitioner as the Co-ordinator; that the note book which contains the details of fees collected between 2015 and 2019 would be signed by the said witnesses LW18, LW19, A10 and the petitioner. It is their further statement that thereafter they came to know that the first two accused had created a false cash receipt voucher making it appear that they have received only Rs.1,22,85,800/- out of the total fees of Rs.2,85,78,140/- handed over to them and misappropriated the said amount. It is not clear as to whether the entire amount of Rs.2,85,78,140/- was handed over in lumpsum or it was handed over in different periods. It is not the case of the prosecution that the petitioner as a Co-ordinator was involved in the handling of the accounts. Except for the vague allegations that she was also involved in the conspiracy, there is nothing in the impugned final report or in the statement of witnesses examined by the prosecution as to what is the exact role played by her. In any case, it is the specific case of the prosecution that the cash receipt was falsified by the first two accused and they had misappropriated the difference amount of Rs.1,62,92,340/-.

16. It is the case of the petitioner that she was working as a Co-ordinator in the School between 2016 and 2019. In the absence of any clear evidence to show that the petitioner had benefited out of the transaction or involved in the conspiracy or had played any role to infer conspiracy, this Court is of the view that the petitioner, who is a lady aged about 70 years cannot be subjected to prosecution only on the strength of the witnesses LW7, LW18 and LW19, even accepting their statements as true.

17. For a better understanding, the relevant portion of the statement of the LW18-Deepa, Headmistress, which is similar to the statement of LW19- Mangayarkarasai-Office Clerk is extracted below:

                 

                  The above statement would only suggest that the 1st accused had misappropriated the sum and she came to know later that the petitioner also could have been involved. The statements of LW18 and LW19 do not state as to how the petitioner was involved except for the vague averment that they came to know later that the petitioner was also involved.

18. Similarly, the next allegation against the petitioner is that she had handed over a sum of Rs.10,00,000/- by a voucher signed by LW7- Kartheeswari and misappropriated the same in the guise of utilising the said fund for High School and Nursery School Function. Here again there is nothing to suggest that the petitioner had benefited out of the transaction or has conspired with the 1st accused and allowed him to misappropriate the money.

19. LW7-Kartheeswari who had signed the voucher, does not state that the petitioner was aware that the said money was not being utilised by the 1st accused as claimed by him. Therefore, this Court is of the view that the said allegation against the petitioner would also not be sufficient to prosecute her for the alleged offences.

20. This Court would not have ordinarily entertained the quash petition in matters of this nature, where conspiracy is alleged. However, the petitioner is sought to be prosecuted on surmises and conjectures. Hence, considering the fact that the petitioner would have been an ideal witness to the prosecution and the fact that she has been prosecuted only because she ought to have verified as to whether the first two accused had utilised the funds in the manner it ought to have been done, this Court is of the view that the alleged negligence or dereliction of duty would not make the petitioner liable for the offence of conspiracy.

21. That apart, it is well settled that the prosecution, in order to prosecute a person for the offence of conspiracy, must establish that the petitioner had knowledge of the object of the conspiracy and had done some act to suggest that he had agreed to commit the offences, as the agreement is the essential ingredient of the offence of conspiracy.

22. As stated earlier, it is the case of the prosecution that the 1st and the 2nd accused had committed the offence in all business enterprises and the school. The petitioner was only a Co-ordinator of the school, which is one of the institutions where the alleged misappropriation was committed. The petitioner cannot be attributed with the knowledge of the object in the conspiracy of A1 and other, which was to commit misappropriation in all the enterprises of the Trust. There may be cases where the accused with the knowledge of the object of conspiracy does some role to infer his participation in the conspiracy, but may not be aware of the finer details and what other accused did in pursuance of the conspiracy, which may still make him liable for the offence of conspiracy. But in this case, the prosecution had not even alleged that the petitioner had knowledge of the object of the conspiracy to commit misappropriation in other business enterprises of the Trust run by the 2nd respondent. If the knowledge cannot be attributed, then the charge of conspiracy against the petitioner would have to fail. These principles have been reiterated by the Hon'ble Supreme Court in State v. Nalini, (1999) 5 SCC 253 : 1999 SCC (Cri) 691 : 1999 SCC OnLine SC 571 and other judgments as well.

23. Thus, this Court is of the view that even if the entire allegations and the materials filed in support of the final report, are accepted to be true, the petitioner cannot be held to be guilty of the offence of conspiracy or the offence of criminal misappropriation or falsification of documents/records.

24. Hence, for all the aforesaid reasons and discussions, this Court is of the view that the impugned prosecution as against the petitioner is without any basis and liable to be quashed. Accordingly, the impugned final report in C.C.No.288 of 2023 is quashed only insofar as the petitioner is concerned and the Criminal Original Petition stands allowed.