Madras High Court
The vs Balu on 7 November, 2019
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl OP(MD) No.16140 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.11.2019
CORAM:
THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P(MD).No.16140 of 2019
and Crl.M.P.(MD) No. 9604 of 2019
Muthuramalingam
S/o. Karuppiah,
No.2/3448A, Muthu Street,
Navarathina Nagar, Karaikudi – 630 002,
Sivagangai District.
The respondent herein wrongly mentioned the name and address of the
petitioner in cause title of the complaint as well as in the impugned notice as
follows:
Ramalingam,
Old No.9/3, New No.24,
Muthubala Mess, Sriram Nagar,
Kottaiyur, Karaikudi Taluk,
Sivagangai District. ... Petitioner
Vs.
Balu ... Respondent
Prayer: Criminal Original Petition filed under section 482 of Criminal
Procedure Code, to call for the records pertaining to the show cause notice,
dated 16.10.2019 issued on the basis of the Judgment, dated 16.10.2019
rendered in STC No.65 of 2015, by the learned Judicial Magistrate/Fast Track
Court, Karaikudi and quash the same.
For Petitioner : Mr. K. Balasundharam
***
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Crl OP(MD) No.16140 of 2019
ORDER
This petition has been filed to quash the impugned show cause notice, dated 16.10.2019 issued on the basis of the Judgment, dated 16.10.2019 rendered in STC No.65 of 2015, by the learned Judicial Magistrate/Fast Track Court, Karaikudi.
2. The learned counsel appearing for the petitioner submitted that one Chandran has lodged a private complaint for the offence under Section 138 of Negotiable Instruments Act in STC No. 65 of 2015 alleged that the petitioner borrowed a sum of Rs.4,30,000/- due to non repayment of the said amount, he issued a cheque and the same was presented for collection it was dishonoured and after causing statutory notice, initiated proceedings for the offence punishable under Section 138 of Negotiable Instruments Act. He further submitted that the petitioner never opened any account in Axis Bank, karaikudi and he never issued any cheque in favour of the said Chandran. Therefore, the trial Court does not satisfy the basic ingredients to constitute the offence under Section 138 of Negotiable Instruments Act and acquitted the petitioner by order, dated 16.10.2019. But, the trial Court has issued show cause notice through its Head Clerk to initiate action against the petitioner under Section 344(1) of Cr.P.C. alleged that the petitioner gave a false evidence during the trial in STC No.65 of 2015. He further submitted http://www.judis.nic.in 2/8 Crl OP(MD) No.16140 of 2019 that there is absolutely no materials as against the petitioner to proceed under Section 344(1) Cr.P.C. The learned Magistrate failed to show that the petitioner never issued any cheque and as such without even ascertaining the actual facts, issued the impugned show cause notice. While issuing the impugned show cause notice, the learned Magistrate did not even follow the mandatory guidelines as contemplated under Section 340 of Cr.P.C. The learned Magistrate has no jurisdiction to issue the impugned show cause notice. He recorded in the order that the false evidence has given and thereafter, the impugned show cause notice was issued. In support of his contention, he also relied upon Judgments reported in 2017 (1) Supreme Court Cases 113 and 2019 AIAR (Crl.) 778
3. Though the petitioner was acquitted based on the complaint lodged by one Chandran for the offence punishable under Section 138 of Negotiable Instruments Act, the learned trial Court found that the petitioner gave false evidence before the trial Court. He had taken defence that he never opened any account in pursuant to the alleged cheque and he never issued any cheque and his signature also denied. During the course of trial, the trial Court elaborately enquired and perused the documents and on the evidence found that the account belonging to the petitioner and the cheque was also issued only in respect of the same account. In respect of signature also found that the petitioner only signed in the cheque. Therefore, the trial http://www.judis.nic.in 3/8 Crl OP(MD) No.16140 of 2019 Court has issued the impugned show cause notice to initiate action under Section 344(1) of Cr.P.C.
4. The learned Counsel appearing for the petitioner submitted that the learned Magistrate has initiated action under Section 340 of Cr.P.C. The learned Magistrate ought to have conducted enquiry after giving an opportunity then only the Magistrate can initiate the proceedings, where as the impugned show cause notice issued under Section 344 (1) of Cr.P.C. It is relevant to extract the provision under Section 344 (1) of Cr.P.C. as follows:
“Section 344 Summary procedure for trial for giving false evidence:
” If, at the time of delivery of any judgment or final order disposing of any judicial proceeding, a Court of Session or Magistrate of the first class expresses an opinion to the effect that any witness appearing in such proceeding had knowingly or willfully given false evidence or had fabricated false evidence with the intention that such evidence should be used in such proceeding, it or he may, if satisfied that it is necessary and expedient in the interest of justice that the witness should be tried summarily for giving or fabricating, as the case may be, false evidence, take cognizance of the offence and may, after giving the offender a reasonable opportunity of showing cause why he should not be punished for such offence, try such offender summarily and sentence him to imprisonment for a term which may extend to three http://www.judis.nic.in 4/8 Crl OP(MD) No.16140 of 2019 months, or to fine which may extend to five hundred rupees, or with both.
5. Therefore, the learned Magistrate rightly directed the Head Clerk to issue show cause notice to take appropriate action for giving false evidence under Section 344 (1) of Cr.P.C. Further, in the show cause notice, it is categorically stated that the reasons for issuance of notice to take action under Section 344(1) of Cr.P.C. as such this Court does not found any infirmity or illegality in the show cause notice issued by the Head Clerk of the learned Magistrate Court.
6. The learned Counsel appearing for the petitioner also relied upon the following Judgements, reported in, (1). 2017(1) Supreme Court Cases, 113, Amarsang Nathaji Vs. Hardik Harshadbhai Patel and Others, held as follows:
5. There are two preconditions for initiating proceedings under Section 340 of Cr.P.C.
1. materials produced before the Court must make out a prima facie case for a complaint for the purpose of inquiry into an offence referred to in clause (b)(i) of sub-section (1) of Section 195 CrPC, and,
2. it is expedient in the interest of justice that an inquiry should be made into the alleged offence.
http://www.judis.nic.in 5/8 Crl OP(MD) No.16140 of 2019 (2). 20170 AIAR (Criminal) 778, Supreme Court of India, Aarish Asgar Qureshi Vs. Fareed Ahmed Qureshi and another, held as follows:
7. The law under Section 340 on initiating proceedings has been laid down in several of our judgements. Thus in Chajoo ram Vs. Radhey Shyam, (1971) 1 SCC 774, this Court, in para 7, stated:
“ 7. .... No doubt giving of false evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge. ” In view of the above, the Hon'ble Supreme Court held that the procedure to be followed to initiate proceedings under Section 340 of Cr.P.C.
In the case on hand, the learned Magistrate has issued the impugned show cause notice for giving false evidence and to initiate proceedings under Section 344 of Cr.P.C. Therefore, the above Judgments are not helpful to the case of the petitioner.
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7. In view of the above discussions, this Court finds no infirmity in the order or in the show cause notice issued to the respondent and the petition is devoid of merits. Accordingly, the Criminal Original Petition is dismissed. Consequently, connected miscellaneous petition is closed.
07.11.2019
Internet : Yes / No
Index : Yes / No
Speaking / Non Speaking order
ksa
To
The Additional Public Prosecutor
Madurai Bench of Madras High Court,
Madurai.
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Crl OP(MD) No.16140 of 2019
G.K.ILANTHIRAIYAN, J.
ksa
Crl.O.P(MD)No. 16140 of 2019
07.11.2019
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