Madras High Court
Wg.Cdr.G.S.Michael (Retd) vs Major J.Victor on 15 July, 2015
Author: R.Subbiah
Bench: R.Subbiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on : 01.07.2015 Date of verdict : 15.07.2015 CORAM: THE HON'BLE MR.JUSTICE R.SUBBIAH Crl.O.P.Nos.20072, 21683 & 25380 of 2010 and M.P.Nos.1 of 2010 in Crl.O.P.No.20072 of 2010 and M.P.Nos.1 to 3 of 2010 in Crl.O.P.No.21683 of 2010 and M.P.Nos.1 & 2 of 2010 in Crl.O.P.No.25380 of 2010 Wg.Cdr.G.S.Michael (Retd) ... Petitioner in Crl.O.P.No.20072 of 2010 Rt.Rev.Dr.V.Devasahayam Mr.Janardhanam Dr.(Mrs.)Rajakumari Sundar ... Petitioners in Crl.O.P.No.21683 of 2010 Rev.Getsy Chellakamalam ... Petitioner in Crl.O.P.No.25380 of 2010 Vs. Major J.Victor ... Respondent in all the above Crl.OPs. Prayer: Petitions filed under Section 482 of the Criminal Procedure Code praying to call for the records pertaining to the proceedings in C.C.No.3195 of 2010 on the file on the learned II Metropolitan Magistrate, Egmore, Chennai and to quash the complainant in so far as the petitioners are concerned. For Petitioners in Crl.O.P.Nos.21683 & 25380/2010 :Mr.V.Raghavachari for Mr.M.Mohan Raj For petitioner in Crl.O.P.No.20072 of 2010 :Mr.C.V.Kumar For respondent in all the above Crl.O.Ps. : Mr.M.Ramamoorthi * * * * * COMMON ORDER
All the above three criminal original petitions have been filed praying to call for the records pertaining to C.C.No.3195 of 2010 pending on the file of the learned II Metropolitan Magistrate, Egmore, Chennai and to quash the same in so far as the petitioners herein are concerned.
2.The petitioner in Crl.O.P.No.20072 of 2010 has been arrayed as 2nd accused, the petitioners in Crl.O.P.No.21683 of 2010 have been arrayed as accused Nos.1, 3 & 4 respectively and the petitioner in Crl.O.P.No.25380 of 2010 has been arrayed as 5th accused in this case. The respondent in all the above three criminal original petitions is the defacto-complainant.
3.The allegations made in the complaint preferred by the respondent/defaco-complainant, in brief, are as follows_ 3(1)The respondent is the member of Egmore Weslcy Church, which is an affiliate of Church of South India Diocese of Madras. The lay members of the Church of South Indian Diocese of Madras have formed the Laity Association of CSI Madras Diocese, in accordance with the law of the land and the SYNOD Constitution, which governs all the 22 Diocese of South India including that of Jaffna. The respondent is the General Secretary of the said Association. It is the case of the respondent that the members of the CSI Madras Diocese are the beneficiaries of the donations and aid given by the foreign agencies. The Laity Association is a registered society, registered under the Societies Registration Act. The 1st accused (1st petitioner in Crl.O.P.No.21683 of 2010) is the Manager and Trustee of all the schools, colleges, CSI Hospitals of the CSI-Madras Diocese and the Properties and funds belonging to the Church of South India Diocese of Madras.
3(2)The first accused had imported and cleared second hand Medical Equipments through Chennai Customs House by filing Bill of Entry No.35757 dated 14.07.2003 declaring the value at Rs.49,91,600/- as certified by Chartered Engineer vide their certificate No.MAS/SMC/C-841/2003-2004 dated 07.07.2003. The subject goods were declared on payment of duty of Rs.1,53,369/- based on the value determined by the Chartered Engineer. The value of the equipment is actually US $ 1000000 (roughly it comes to about Rs.4.50 crores in Indian currency). All the accused have conspired together and acted in furtherance of their common intention in illegally disposing of the property imported for the benefit of the congregation and have made illegal money by committing breach of trust and they are supposed to be the guardians of the property, which they have illegally disposed of.
3(3)The first accused with the active collaboration of the accused 2 to 5 illegally disposed of the entire Hospital Medical equipment and the money has been illegally taken by all the accused persons. The equipments were disposed of in part by part from Nagari, Chittor District, Andhra Pradesh from January-2003 onwards on various dates. The criminal action has commenced from the premises of M/s.Asian Shipping Agencies, 240/2 Thambuchetty Street, Chennai. The materials were transported through the vehicle of M/s.Shanthi Lorry Service at No.11, Acharappan Street, Chennai from the Chennai Port and hence, the Court at Chennai has the jurisdiction over the offence. The Commissioner of Customs (Import), Chennai has issued show cause notice under Section 124 and Demand under proviso to Section 28 of Customs Act 1962 for under valuation of the imported goods on 15.07.2008 demanding Rs.1.35 crores on account of evasion of duty. Further, this Court by order dated 09.11.2009 in W.P.No.22794 of 2009 has directed the Commissioner of Customs (Imports), Chennai to pass final orders on his show cause notice within a period of six months from that date. The Directorate of Revenue Intelligence is also investigating the matter and has given its directions to the Commissioner of Customs (Imports), Chennai.
3(4)It is the specific allegation of the respondent that all the donated hospital equipments, accessories and medicines have been believed to have been sold and the amounts have been misappropriated by the accused with a common intention. Based on the complaint, the learned II Metropolitan Magistrate, Egmore, Chennai has taken cognizance of the offences under Sections 408, 418, 420 r/w 34 IPC and issued summons to all the accused.
3(5)Now, for quashing the criminal proceedings, the present petitions have been filed by the petitioners/accused.
4.The learned counsel appearing for the petitioners/accused submitted that as per the allegations made in the compliant, second-hand medical equipments were donated to the hospital at Nagari, Chittur District, Andhra Pradesh and the goods were cleared through Chennai Customs House by Bill of Entry No.35757 dated 14.07.2003. Subsequently, the goods were transported to the hospital at Nagari in Andhra Pradesh. Further, it is the specific allegation in the complaint that the petitioners herein with the active connivance of each other illegally disposed of the entire medical instruments at Nagari in part by part from January 2003 onwards on various dates. Therefore, according to the learned counsel for the petitioners/accused, the allegations made in the complaint would show that the entire alleged offence was said to have taken place only at Nagari, Andhra Pradesh and not within the jurisdiction of the Court at Chennai; under such circumstances, the learned II Metropolitan Magistrate, Egmore has committed an irregularity in taking cognizance of the offence, which would vitiate the entire proceedings. In this regard, the learned senior counsel appearing for the petitioners/accused invited the attention of this Court to Section 461(k) of Cr.PC., which reads as follows_ Section 461:- Irregularities which vitiate proceedings:- If any Magistrate, not being empowered by law in this behalf, does any of the following things, namely:-
(a) to (J)................
(k)takes cognizance of an offence under clause (c) of sub-section (1) of section 190;
Thus, by relying upon the above provision, the learned counsel appearing for the petitioners/accused submitted that the learned II Metropolitan Magistrate, Egmore has no jurisdiction to entertain the complaint. But, inspite of that, he had taken cognizance of the offence. Hence, the entire proceedings is vitiated.
5.In this regard, the learned counsel for the petitioners/accused have also drawn the attention of this Court to Section 177 of Cr.P.C., and submitted that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. Thus, the learned counsel appearing for the petitioners/accused submitted that the impugned proceedings have to be quashed for want of jurisdiction.
6.Further, the learned counsel for the petitioners submitted that mere entrustment of the second-hand medical equipments to the petitioner/accused at Chennai will not constitute an offence of criminal breach of trust. Only when the property that was so entrusted is disposed of illegally, the offence of criminal breach of trust would be completed. In the instant case, even as per the allegations made in the compliant, the second-hand medical equipments were illegally disposed of only at Nagari in Andhra Pradesh; therefore, the offence is alleged to have been completed only at Nagari and not at Chennai. In support of their contentions, the learned counsel appearing for the petitioners/accused have also relied upon the judgment reported in (1997) 1 CALLT 331 HC [Pradipta Basu Roy Chowdhury Vs. Smt.Babita Basu Roy Chowdhury), wherein it has been held that when the charge is under Section 405 IPC, offence is completed only when the second ingredient of Section 405 IPC is completed and not before that and mere entrustment does not make an offence. In support of their contentions, the learned counsel for the petitioners/accused have also relied upon another judgment reported in (2004) 8 SCC 100 [Y.Abraham Ajith and others Vs. Inspector of Police, Chennai and another].
7.It is the second fold of submission of the learned counsel appearing for the petitioners/accused that the complaint was filed by the respondent only to direct the Police to reinvestigate the case by registering the FIR and to file a final report. But, the Court below by recording the sworn statement of the complainant has taken cognizance of the offence and by taking the complaint on file, the learned Magistrate had issued summons to the accused. Thus, according to the learned counsel for the petitioners/accused, when the prayer itself is for direction to reinvestigate the case, the Court below ought not to have taken the complaint on file.
8.Countering the submissions made by the learned senior counsel for the petitioners, the learned counsel appearing for the respondent submitted that cognizance was taken by the Court below for the alleged offences under Sections 408, 418, 420 r/w 34 IPC. There is a specific allegation in the complaint to the effect that the criminal action has commenced from the premises of M/s.Asian Shipping Agencies, situated at No.240/2 Thambuchetty Street, Chennai. Further more, the equipments donated by the foreign countries were only for the benefit of the congregation of the members of the society. Hence, though the medical equipments were sold in part by part at Nagari in Andhra Pradesh, the same has to be accounted only at the association at Chennai; as such the complaint is very well maintainable before the Court at Chennai. Hence, the submission made by the learned counsel for the petitioners that the offence is completed only at Nagari in Andhra Pradesh has no significance in this matter.
9.With regard to the other submission made by the learned counsel appearing for the petitioners/accused that the complaint was filed by the respondent/complainant only to direct the Police to reinvestigate the case by filing FIR and to file final report, the learned counsel for the respondent submitted that under Section 190(1)(c) of Cr.PC., the Magistrate can take cognizance upon the information received from any person other than a police office or upon his own knowledge that such offence has been committed. In the instant case, the learned II Metropolitan Magistrate, Egmore has taken cognizance upon the complaint given by the respondent; therefore, according to the learned counsel for the respondent/complainant, there is no legal bar for the Magistrate to take cognizance on the complaint filed by the respondent/complainant, though the prayer was made only to reinvestigate the case.
10.Keeping the submissions made on either side, I have carefully perused the materials available on record.
11.The submissions made by the learned counsel counsel appearing for the petitioners are mainly on two folds_
(i)As per the allegations made in the complaint, the entire alleged offence is said to have taken place only within the jurisdiction at Nagari in Andhra Pradesh; hence, the learned II Metropolitan Magistrate, Egmore ought not to have taken cognizance of the offence; by taking cognizance of the offence, the learned Magistrate has committed irregularity, which would vitiate the entire proceedings under Section 461(k) of Cr.PC.
(ii)The complaint was filed only for reinvestigation of the case, but the learned Magistrate took the complaint on file, by taking cognizance of the offence and issued summons to the accused.
12.On a perusal of the complaint filed by the respondent/complainant, I find that in the complaint the respondent/complainant has made a specific allegation that all the accused persons have conspired together and acted in furtherance of their common intention in illegally disposing of the property imported for the benefit of the congregation and have made illegal money by committing breach of trust. The said allegation would clearly show that the medical equipments were imported only for the benefit of the congregation, which is situated at Chennai. Though the medical equipments were transported to Nagari, where they were sold in part by part, ultimately the same have to be accounted only with the association at Chennai. In fact, in the sworn statement of the complainant, he had clearly stated that the benefit of the donation has not reached the members of the association at Chennai. The relevant portions in the complaint are as follows:-
3..... The lay members of the Church of South India Diocese of Madras have formed the Laity Association of CSI Madras Diocese, in accordance with the law of the land and the SYNOD Constitution, which governs all the 22 Dioceses of South India including that of Jaffna. The complainant is the General Secretary of the Association. It is submitted that the members of the CSI-Madras Diocese are the beneficiaries of the donations and aid given by the foreign agencies. Hence, the complainant has the locus standi to lodge this complaint. The Laity Association is a registered society, registered under the Societies Registration Act.
.......
5.It submitted that first accused had imported and cleared second hand Medical Equipments through Chennai Custom House by filing Bill of Entry No.35757 dated 14-07-2003 declaring the value at Rs.49,91,600/- as certified by Chartered engineer vide their certificate No.MAS/SMC/C-841/2003-2004 dated 07-07-2003. The subject goods were declared on Payment of duty of Rs.1,53,369/- based on the value determined by the chartered engineer. It is submitted that same the equipment is actually US $1000000. Roughly, this comes to about Rupees Four Crores and Fifty Lakhs in Indian Currency. All the accused have conspired together and acted in furtherance of their common intention in disposing of the property imported for the benefit of the congregation, illegaly and have made illegal money by committing breach of trust. They are supposed to be the guardians of the property which they have illegally disposed off.
....
9..... All the donated hospital equipments, accessories and medicines have been believed to have been sold and the amounts have been misappropriated by the accused with a common intention. The materials are missing even now. Further, the sworn statement, the respondent had deposed as follows:-
nkw;brhd;d rhjd';fis efhp kUj;Jtkidf;F bfhz;L bry;yhky; tHpapnyna efhp lt[dpnyna mjid ntW egh;fSf;F 6 Kjy; 7 khj ,ilg;gl;l fhyj;jpy; tpw;Wtpl;lhh;fs;/ 1tJ vjphpapd; nkw;brhd;d bray;fSf;F 2 Kjy; 5 vjphpfs; Tl;lhf bray;gl;L cs;sdh;/ nkw;brhd;d tptuk; Fkhh; vd;gth; K:ykhf bjhpate;jJ/ M!;gj;jphpf;F rhjd';fs; ngha; nruhjjhy; mjd; gadpfs; nguhaj;jpy; nrh;e;jth;fshd cWg;gpdh;fSf;F gad; ngha; nrutpy;iy/ Under Section 181(4) of Cr.PC., where the offence was committed or any part of the property which is the subject of the offence was received and retained or was required to be returned or accounted for, the Court at that place will have the jurisdiction. For better understanding, Section 181(4) of Cr.PC., is extracted hereunder_ 181(4)Any offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried only a Court within whose local jurisdiction the offence was committed or any part of the property which is the subject of the offence was received or retained, or was required to be returned or accounted for, by the accused persons.
A reading of the above provision would clearly show that any offence of criminal misappropriation or criminal breach of trust may be tried by a Court within whose local jurisdiction, the petitioner/accused has to account for the money misappropriated. In the instant case, the cognizance has been taken for the alleged offence under Sections 408, 418, 420 r/w 34 IPC. Since a part of the property, which is subject of the offence, has to be accounted for at the association in Chennai, definitely the Court at Chennai will have the jurisdiction. Therefore, the submission made by the learned senior appearing for the petitioners/accused based on Section 461(k) of Cr.PC., has no significance in this matter.
13.It is the next fold of submission of the learned counsel for the petitioners/accused that the complaint was filed by the respondent/complainant only for reinvestigation of the matter, but contrary to the prayer sought for by the complainant, the learned Magistrate has taken cognizance of the offence and issued summons.
14.But, I am of the opinion that as contended by the learned counsel for the respondent, under Section 190(1)(c) of Cr.PC., upon information received from any person other than a police officer or upon his own knowledge that such offence has been committed, the learned Magistrate can take cognizance of the same. In the instant case, instead of directing the Police to conduct reinvestigation, the learned Magistrate himself has taken cognizance of the offence. Absolutely, there is no bar for the Magistrate to take cognizance of the offence. Hence, I do not find any infirmity in the cognizance taken by the learned Magistrate on the complaint filed the respondent/defacto-complainant, though the prayer was made in the complaint to direct the Police to reinvestigate the matter.
15.On the whole, I am of the opinion that no ground has been made out by the petitioners/accused to quash the impugned proceedings. Hence, I am not inclined to entertain the present criminal original petitions.
In fine, all the above criminal original petitions are liable to be dismissed and accordingly, the same are dismissed.
15.07.2015 Internet : Yes / No Index : Yes / No ssv To,
1.The II Metropolitan Magistrate, Egmore, Chennai.
R.SUBBIAH, J.
ssv Pre-delivery common order in Crl.O.P.Nos.20072, 21683 & 25380 of 2010 15.07.2015