JUDGMENT : (Prayer in both Crl.R.Cs.: Criminal Revision Cases filed under Section 397 r/w. 401 of the Criminal Procedure Code, praying to set aside the judgment passed by the learned I Additional Sessions Judge, Tiruvallur, in Criminal Appeal No.98 of 2013, dated 17.12.2014, reversing the order of acquittal passed by the learned Judicial Magistrate No.I, Ponneri, in C.C.No.73 of 2004, dated 31.01.2013.) 1. The matters are heard through “Video Conference”. The convicted accused Nos.1 and 2 have preferred the above criminal revision cases against the judgment passed by the learned I Additional Sessions Judge, Tiruvallur, in Criminal Appeal No.98 of 2013, dated 17.12.2014, reversing the order of acquittal passed by the learned Judicial Magistrate No.I, Ponneri, in C.C.No.73 of 2004, dated 31.01.2013. 2. The respondent police has filed final report in Crime No.1 of 2003 alleging that the first accused by name Selvaraj was working as Secretary and the second accused namely, Sundaramurthy was working as Cashier in Ponneri Co-operative Rural Bank. On 14.10.1996, A.1 has falsified the accounts and misappropriated a sum of Rs.1,00,000/- from the fixed deposit of Thiru Masilamani and further, on 20.03.1997, A.1 has falsified the accounts and misappropriated a sum of Rs.1,73,000/- from the fixed deposit of Thiru Mohideen Sahib. The second accused, without verifying the accounts, gave fixed deposit money to A.1 and therefore, A.2 has abetted the illegal act of A.1. Hence, both A.1 and A.2 have committed criminal breach of trust, forgery of valuable security, using as genuine a forged document, falsification of accounts and fraudulent of accounts and therefore, A.1 is liable to be punished for the offences under Sections 408, 467, 471 and 477(A) of IPC and A.2 is liable to be punished for the offences under Sections 109 r/w.408, 467, 471 and 477(A) of IPC. 3. During trial, on the side of the prosecution, 11 witnesses were examined as P.Ws.1 to 11 and 23 documents were marked as Exs.P.1 to P.23. On the side of the accused, no witness was examined and no document was marked. 4. The learned Judicial Magistrate No.I, Ponneri, after considering both oral and documentary evidence produced on the side of the prosecution, has acquitted both A.1 and A.2 from the charges levelled against them. On the side of the accused, no witness was examined and no document was marked. 4. The learned Judicial Magistrate No.I, Ponneri, after considering both oral and documentary evidence produced on the side of the prosecution, has acquitted both A.1 and A.2 from the charges levelled against them. As against the said order of acquittal, the state has preferred an appeal in Crl.A.No.98 of 2013 before the learned I Additional Sessions Judge, Tiruvallur and the learned I Additional Sessions Judge, Tiruvallur, has allowed the said appeal and set aside the judgment passed by the learned Judicial Magistrate No.I, Ponneri, and convicted and sentenced both the accused Nos.1 and 2 under the aforementioned Sections. As against the said conviction and sentence passed by the learned I Additional Sessions Judge, the first accused has preferred Crl.R.C.No.40 of 2015 and the second accused has preferred Crl.R.C.No.11 of 2015. 5. Heard the learned counsel for the revision petitioners and the learned Government Advocate (Crl.Side) and also perused the records. 6. On a perusal of records, it is seen that P.W.1, who is the Sub-Registrar of Ponneri, was appointed as an enquiry officer and he conducted enquiry and submitted his report on 29.07.2002. 7. P.W.2 was working as Sub-Registrar of Ponneri and he has passed an order whereby, P.W.7/Development Officer at Minjur Panchayat Union was appointed as an enquiry officer under Section 81 of the Tamil Nadu Co-operative Societies Act, 1983 [hereinafter referred to as the Act]. The said order was marked as Ex.P.2. P.W.3 is the Secretary of Ponneri Rural Co-operative Bank. In the presence of two directors of the bank, the locker was opened and verified the things in the locker. They were found that all the jewels in the locker are correct. On 24.11.1997, an order was passed by the bank to all the staff in the bank to verify all the accounts and submit their report. They came to know that the accounts were falsified and misappropriated the fixed deposit of a sum of Rs.1,00,000/- of Masilamani and Rs.1,73,000/- of Mohideed Shahib. He has sent a letter under Ex.P.3 to the Sub Registrar, Ponneri, for taking action against A.1 and A.2. 8. The case of the prosecution is that in the Ponneri Rural Co-operative Bank, A.1 Selvaraj was working as a Secretary and A.2 Sundaramurthi was working as a Cashier. He has sent a letter under Ex.P.3 to the Sub Registrar, Ponneri, for taking action against A.1 and A.2. 8. The case of the prosecution is that in the Ponneri Rural Co-operative Bank, A.1 Selvaraj was working as a Secretary and A.2 Sundaramurthi was working as a Cashier. On 14.10.1996, A.1 has falsified the accounts and misappropriated a sum of Rs.1,00,000/- from the fixed deposit of Thiru Masilamani and further, on 20.03.1997, a sum of Rs.1,73,000/- from the fixed deposit of Thiru Mohideen Sahib. The second accused, without verifying the accounts, gave fixed deposit money to A.1 and therefore, A.2 has abetted the illegal act of A.1. Hence, both A.1 and A.2 have committed the criminal breach of trust, forgery of valuable security, using as genuine a forged document, falsification of accounts and fraudulent of accounts. 9. The case of the defence/revision petitioners is on three folds. The alleged offence is barred by limitation and in view of the inordinate delay in conducting the enquiry under Section 81(4) of the Act, the complaint itself is not valid. 10. Additional typed set of papers have been filed consisting of deposition. From the analysing of the evidence of P.W.1, it is found that P.W.1 has lodged the complaint after receiving 81 enquiry report and it was admitted by P.W.1 that 81 enquiry report was filed after eight months of the enquiry and which is against the provision of Section 81 of the Act. There are no documents to show that A.1 was participated in the Section 81 enquiry proceedings. 11. It is admitted by P.W.2 that during his working period, the Special Officer has not given any complaint against A.1 and A.2 regarding forged documents. P.W.7, who was appointed as an enquiry officer, admitted that 81 enquiry report was filed belatedly and A.1 has not appeared in the Section 81 enquiry proceedings. 12. The date of occurrence took place from 04.10.1996 to 13.11.1997 and complaint was lodged on 22.05.2003. As per Ex.P.23/First Information Report, there was a delay of 5 years in lodging the complaint. In this regard, the learned counsel for A.1 has relied on a decision of the Hon’ble Supreme Court reported in (1981) 3 SCC 34 [State of Punjab Vs. Sarwan Singh]. 13. The enquiry report was filed after lapse of 14 months which is contradictory to the provision of Section 81(4) of the Act. In this regard, the learned counsel for A.1 has relied on a decision of the Hon’ble Supreme Court reported in (1981) 3 SCC 34 [State of Punjab Vs. Sarwan Singh]. 13. The enquiry report was filed after lapse of 14 months which is contradictory to the provision of Section 81(4) of the Act. It is admitted by P.Ws.1 to 3 that they have not obtained prior permission seeking extension of time for filing 81 enquiry report. It is also admitted that the misappropriated money was returned to the aggrieved persons. 14. In a decision reported in (2006) 5 SCC 381 [State of H.P. Vs. Karanvir], the Hon’ble Supreme Court has held as follows:- “(A) Indian Penal Code (45 of 1860). Sections 405 and 409. Criminal Breach of trust by public servant. Charge of misappropriation of public money. Accused not utilised amount for the purpose it was entrusted offence of entrustment proved by prosecution. Actual manner of misappropriation need not prove in defence as to how he dealt with the entrusted amount. Guilt of sentence accused aged 60 years. Offence committed 15 years back. Keeping in view deposit of entire amount before F.I.R. lodged. Interest of justice. No substantial punishment is awarded. Fine imposed with default sentence.” 15. In a decision reported in (2012) 4 SCC 722 [Govindaraju Alial Govinda Vs. State by Sriramapuram police station and another], the Hon’ble Supreme Court has held as follows:- “It is not necessary that wherever the witness turned hostile, the prosecution case must fail. Part of statement of such hostile witnesses that supports the case of the prosecution can be taken into consideration.” 16. From analysing the evidence of the prosecution witnesses, it is clear that none of the witnesses has spoken about the involvement of A.2 in the offence and charge against A.2 was not proved by the prosecution side through its witnesses. It is also admitted fact by the prosecution side that the prosecution witnesses have given evidence that A.2 is not responsible or involved in the above said offence. Therefore, so far as A.2 is concerned, this Court concludes that A.2 was not involved in the above said offence. 17. The prosecution mainly charged A.1 for committing the offence under Sections 408, 467, 471 and 477(A) IPC. Therefore, so far as A.2 is concerned, this Court concludes that A.2 was not involved in the above said offence. 17. The prosecution mainly charged A.1 for committing the offence under Sections 408, 467, 471 and 477(A) IPC. From analysing the prosecution evidence, it is admitted by P.Ws.1 to 7 that A.1 has not participated in the 81 enquiry proceedings and complaint was lodged on 22.05.2003 for the offence which was committed in the year from 14.10.1996 to 13.11.1997. Further, enquiry report was filed belatedly. To decide this issue, it is very important to go through the provisions of Section 81(1) of the Act, which reads as follows:- “The Registrar may, of his own motion and shall, on the application of a majority of the board or of not less than one third of the members or on the request of the financial bank or of the District Collector hold an inquiry or direct some person authorised by him by order in writing in this behalf to hold an inquiry into the constitution, working and financial conditions of a registered society or any alleged misappropriation, fraudulent retention of any money or property, breach of trust, corrupt practice or mis-management in relation to that society or into any particular aspect of the working of that society”. 18. On going through the provisions under Section 81(1) of the Act, this Court comes to the conclusion that the complaint of P.W.3 is against the provision under Section 81(1) of the Act. The provision under Section 81(4) of the Act has fixed the time limit for completion of enquiry, which may not exceed the maximum period of six months which need prior permission. Now, in this case, it is admitted by the witnesses P.Ws.1 to 7 that Section 81 enquiry report was filed after the time limit prescribed under Section 81(4) of the Act and no prior permission was obtained for extension of time to file the enquiry report. Therefore, this Court concludes that enquiry report filed under Section 81 of the Act was not filed within the time limit provided under Section 81(4) of the Act. 19. It is admitted by P.W.1 that the above case was registered based on the enquiry report filed under Section 81 of the Act. Therefore, this Court feels that Section 81 enquiry report is the basis for registering the above case against A.1 and A.2. 19. It is admitted by P.W.1 that the above case was registered based on the enquiry report filed under Section 81 of the Act. Therefore, this Court feels that Section 81 enquiry report is the basis for registering the above case against A.1 and A.2. When the entire enquiry report is against the provisions under Sections 81(1) and 81(4) of the Act, there is no point on the prosecution side to argue that A.1 and A.2 has committed the above said offences. The prosecution has not explained the delay of 5 years in registering the case against A.1 and A.2. 20. On the above similar lines, the trial Court has held that the enquiry was not completed within the mandatory statutory period and there is inordinate delay in registering the FIR against A.1 and A.2 and hence, the defence was handicapped in projecting their case and as against A.2, none of the witnesses has spoken about the involvement of A.2 in the offence. Prosecution witness has not adduced any witness against A.2 stating that A.2 is responsible or involved in the said offence. A.2 is Cashier based upon the encashment slip produced. After getting signature from the officers of the co-operative societies, A.2 has paid the amount and hence, he was alleged to have involved as an abettor and he has discharged his duty as per the bye-law and hence, I find that A.2 Sundaramurthy, who is a Cashier, is not involved in the offence and his involvement in the alleged crime is not proved. Furthermore, P.W.7 Nakiran, during the cross-examination on 14.07.2014, has categorically admitted that the signature in the withdrawal slip was not compared with the original document and no opinion from the handwriting expert was obtained. “TAMIL” 21. Thus, he answered in affirmative that the signature found in the withdrawal slip and the verification signature neither compared nor opinion from the handwriting expert was obtained and hence, A.2 cannot be held liable for the alleged charge. In the absence of any mens ria, A.2 cannot be proceeded further. 22. In the decision reported in 2014 (1) L.W. (Crl.) 494 [M.Govindan Vs. The State rep. by Inspector of police], on a similar set of fact, this Court has held as follows:- “Complaint whether barred by limitation. Enquiry period. Period of three months or within extended time. In the absence of any mens ria, A.2 cannot be proceeded further. 22. In the decision reported in 2014 (1) L.W. (Crl.) 494 [M.Govindan Vs. The State rep. by Inspector of police], on a similar set of fact, this Court has held as follows:- “Complaint whether barred by limitation. Enquiry period. Period of three months or within extended time. Scope of enquiry was commenced on 15.12.1999 and the period for completion of enquiry was extended twice upto 24.09.2000 which is beyond 9 months. Report was filed on 16.03.2001 which is beyond extended period of nine months.” 23. In Crl.R.C.(MD).Nos.95, 124 and 125 of 2008, dated 29.10.2010, [Thambiraj and two others Vs. State by Inspector of Police[ at para No.13, the Madurai Bench of this Court has held as follows:- “13. As per the mandatory provision under Section 81(4) of the Act, in this case, admittedly, the enquiry has not been completed within three months from the date of ordering of the enquiry and it is also seen that there is no records produced by PW.5 to show that he has sought for permission for extension of another six months time from the next authority to complete the enquiry and the same has been granted. In this case, since as per the mandatory provision under Section 81(4) of the Act, the enquiry has not been completed within the period of limitation, the complaint itself is barred by limitation.” 24. Learned counsel for the revision petitioners relied on a decisions of this Court in [i] Crl.R.C.Nos.2034 and 2035 of 2004, dated 21.06.2007 [A.Kannan Vs. State by Inspector of Police] and [ii] Crl.R.C.Nos.555, 556, 557, 558, 559, 560, 561, 562, 563, 564, 565, 566 and 573 of 2010, dated 21.07.2015 [R.Renu Vs. State by Inspector of Police]. 25. On a perusal of the documents filed before the learned I Additional Sessions Judge at Tiruvallur, I find that the occurrence took place during the period between 14.10.1996 and 13.11.1997; complaint has been lodged on 22.05.2003 and there is a delay of 5 years in lodging the complaint and that the complaint given by P.W.2 is also not a valid one under Section 81(4) of the Act, as it is filed after a lapse of 14 months and the enquiry report filed by P.W.7 is also contradictory to the provision of Section 81(4) of the Act. 26. 26. It is further seen that the enquiry under Section 81 of the Act was ordered on 10.03.1998. P.W.4 Murugan was appointed as an enquiry officer in the office letter marked as Ex.P.2 and P.W.7 was appointed as an enquiry officer on 07.09.1998. P.W.7 completed the enquiry on 07.12.1998 and as per the report filed on 25.06.1999 and as admitted in the cross-examination, no letter for extension of time was granted not sought for also assumes significance. 27. In view of the consistent view taken by this Court in respect of criminal prosecution, the completion of enquiry within the stipulated time as prescribed under Section 81 (4) of the Act is mandatory. Besides, in this case, criminal prosecution was launched after five years from the alleged date and there is no plausible explanation for the inordinate delay of five years in launching the prosecution coupled with the admission of P.W.7 that the signature found in the withdrawal slip with the signature verification register was not carried nor any opinion has been obtained from the handwriting expert also goes against the prosecution. As discussed supra, the revision petitioners/A.1 and A.2 are entitled for benefit of doubt and hence, in this view of the matter, the conviction and sentence passed by the Lower Appellate Court in Crl.A.No.98 of 2013 is liable to be set aside. 28. In the result, [i] Both the criminal revision cases are allowed and the conviction and sentence passed by the learned I Additional Sessions Judge, Tiruvallur, in Crl.A.No.98 of 2013, dated 17.12.2014, are set aside. [ii] The revision petitioners/A.2 and A.1 respectively are acquitted of the charges levelled against them. The bail bond executed by the revision petitioners shall stand cancelled and the fine amount paid, if any, is ordered to be refunded to them. [iii] The order of acquittal passed by the learned Judicial Magistrate No.I, Ponneri, in C.C.No.73 of 2004, dated 31.01.2013, is restored.