Madras High Court
C Rl. R. C .(Md) N O. 4 2 6 O F 2 0 1 9 vs Bhuneshwar Prasad Sinha And Others ...
Crl.R.C.(MD) No.426 of 2019 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on: 19.11.2019 Pronounced on: 27.11.2019 CORAM T H E HO N O U R A B L E MR. J U S T I C E V. PA R T HI B A N C rl. R. C .(MD) N o. 4 2 6 o f 2 0 1 9 K.Samuel Jebakumar ... Revision Petitioner/Complainant V s.
1. N.Radhakrishnan ...Respondent No.1/Accused
2. The Inspector of Police District Crime Branch O/o The Superintendent of Police Thoothukudi Crime No.29 of 2018 ...Respondent No.2 P R AY E R : Criminal Revision Case is filed under Sections 397 r/w 401 and 482 of the Criminal Procedure Code to call for the records and set aside the order dated 14.05.2019 in Crime No.29 of 2018, on the file of the Judicial Magistrate Court No.III, Thoothukudi.
For Petitioner : Mr.R.John Sathiyan
for Mr.V.Rajiv Ragul
For Respondents : For R1 - Mr.Issack Mohanlal, Senior Counsel
for M/s.Lakshmi Gopinathan
For R2 – M/s.Anantha Devi
Government Advocate (Criminal Side)
http://www.judis.nic.in1/18
Crl.R.C.(MD) No.426 of 2019
O R DE R
The present revision is filed against the order passed by the learned Judicial Magistrate No.3, Tuticorin in Crl.M.P.No.29 of 2018 dated 14.05.2019 dismissing the protest petition filed by the petitioner herein.
2. The case of the prosecution is that the defacto complainant entered into business transaction with the first respondent in regard to export of match boxes outside India. In the course of the business deal, certain consignments were handed over to the petitioner by the first respondent to be exported to African countries. According to the petitioner, the first respondent had introduced a foreign buyer to him and however, the consignment exported to the African country was not taken delivery at the receiving point and the petitioner was not paid due to the export of the consignments by the buyer and therefore, the petitioner suffered business loss. According to the petitioner, his wife was running a proprietor concern in her name and the petitioner being the husband of the proprietor was in-charge of day to day administration of the concern and all the negotiations have been done by the petitioner himself and according to him, the first respondent along with two others have colluded and cheated the petitioner for which a complaint was lodged before the second respondent police to http://www.judis.nic.in2/18 Crl.R.C.(MD) No.426 of 2019 initiate action against the first respondent and others for the offences under Sections 420, 409 and 506(i) IPC. On the basis of the complaint, First Information Report was registered in Crime No. 29 of 2019. The second respondent police appears to have investigated and after investigation, it was referred to as 'mistake of fact' by the respondent police and the closure report was filed on 14.01.2019.
3. Thereafter, the petitioner filed the protest petition before the learned Judicial Magistrate No.III, Tuticorin and the learned Judicial Magistrate, after adverting to the materials that were placed for consideration before the Investigating Agency and after going through the report, has dismissed the petition on 14.05.2019. As against which, the present revision petition has been filed by the petitioner herein.
4. According to the learned Government Advocate (Crl.side) appearing for the second respondent police, the transaction between the petitioner and the first respondent and others was purely business transaction and the petitioner himself has through his wife has issued several cheques to the first respondent towards purchase of match boxes and since those cheques were not honoured the first respondent has filed a case before the learned jurisdictional Magistrate, Kovilpatti http://www.judis.nic.in3/18 Crl.R.C.(MD) No.426 of 2019 under Section 138 of Negotiable Instruments Act against the petitioner's wife. The said case was taken on file as C.C.Nos.36 to 41 of 2018 by the learned Judicial Magistrate No.1, Kovilpatti. The learned Judicial Magistrate No.III, Thoothukudi. has dismissed the protest petition on the ground that already cheque dishonored cases have been slapped against the petitioner's wife, it is open to the petitioner to put forward his defence before the Judicial Magistrate No.1, Kovilpatti and as far as the allegations as agianst the first respondent and others are concerned, the learned Judicial Magistrate No.III, Tuticorin has held that no criminal case could be made out and accepted the closure report filed by the police.
5. Mr.R.John Sathiyan, learned counsel appearing for the petitioner would strenuously argue that the learned Magistrate has not applied her mind while dismissing the protest petition since several contemporaneous documents were filed before the police in order to establish the offences alleged against the first respondent herein and others. In fact, the learned counsel for the petitioner would draw the attention of this Court to several communications exchanged between the parties for showing how fraud was played on the petitioner by those persons including the first respondent herein. http://www.judis.nic.in4/18 Crl.R.C.(MD) No.426 of 2019
6. Unfortunately, according to the learned counsel for the petitioner, the learned Magistrates has completely overlooked all the available materials placed on record and simply brushed aside and dismissed the protest petition only on the ground that the cheque dishonour cases have been pending against the petitioner's wife and therefore, the petitioner and his wife could work out their remedies before the Judicial Magistrate No.1, Kovilpatti, before whom the cheque dishonour cases are pending.
7. According to the learned counsel for the petitioner, cheques were given to the first respondent as a matter of security in the business transaction between the petitioner and the first respondent and there was no enforceable debt and therefore criminal case filed against the petitioner's wife at the instance of the first respondent under Section 138 of Negotiable Instruments Act cannot be held against the petitioner for proceeding against the first respondent and others, who played fraud in cheating the petitioner in the course of business transaction.
8. According to the learned counsel for the petitioner it is incumbent upon the learned Magistrate No.III, Tuticorin, to give detailed reasons while dismissing the protest petition. In the instant http://www.judis.nic.in5/18 Crl.R.C.(MD) No.426 of 2019 case, the learned Magistrate has passed a cryptic order containing few lines. Therefore on the face of it, the order passed by the learned Magistrate suffers from non-application of mind and therefore, he urged this Court to remand the matter back to the learned Judicial Magistrate with the direction to apply her mind to various documents relied on by the petitioner before the Investigating Agency and to pass a detailed order after appreciating all the relevant materials placed on record.
9. On behalf of the second respondent police, a detailed counter affidavit has been filed. In the counter affidavit, it has been stated that despite several summons issued to the petitioner by the police calling for production of documents, the petitioner did not respond to the summons at all. Therefore, he cannot be allowed to assail the closure report submitted by the police.
10. The learned counsel for the petitioner would reply that the statement made on behalf of the second respondent police in the counter is contrary to fact and in order to refute the submissions, the petitioner has filed a re-joinder in which he has clearly averred the number of days he has attended enquiry conducted by the second respondent police. In any event, the learned Government Advocate http://www.judis.nic.in6/18 Crl.R.C.(MD) No.426 of 2019 appearing on behalf of the State would submit that the police has filed a closure report as 'mistake of fact' after adverting to the documents and the materials, which came up for consideration before the Investigating Agency and the learned Magistrate is not called upon to pass a detailed order when a detailed report has been submitted by the second respondent.
11. Mr.Isaac Mohanlal, learned Senior Counsel appearing for the first respondent would submit that when the report is filed under Section 173 Cr.P.C by the police, it is enough for the Magistrate to pass an order where there should be a reflection of an application of mind to the report of the investigating officer. In this case, the learned Magistrate has passed an order which cannot be said that it is bereft of any reasons and details. The order, as it is, would disclose proper application of mind and there is absolutely no requirements under the Code of Criminal Procedure that in such situation the Magistrate has to pass a lengthy and detailed order.
12. Mr.Isaac Mohanlal, the learned Senior Counsel appearing for the first respondent would further submit that if the petitioner is really aggrieved by the dismissal of the protest petition, it is always open to the petitioner to approach the Magistrate concerned by filing a private http://www.judis.nic.in7/18 Crl.R.C.(MD) No.426 of 2019 complaint under Section 200 Cr.P.C. Without availing the said remedy provided under Section 200 Cr.P.C, the petitioner this revision challenging the order passed by the learned Judicial Magistrate.
13. At this juncture, the learned counsel for the petitioner would submit that once the protest petition is dismissed, it is very unlikely that the learned Magistrate would entertain a private complaint filed under Section 200 Cr.P.C. This is more particularly so, if this Court dismisses the present revision, that would be end of the road for the petitioner as far as the action to be taken against the first respondent and others, who played fraud upon the petitioner and cheated him.
14. In order to dispel the apprehension expressed by the learned counsel for the petitioner about non-availability of any remedy under Section 200 Cr.P.C., in the circumstances of the case, Mr.Isaac Mohanlal, learned Senior counsel appearing for the first respondent would submit that the said remedy is absolutely very much open to him to have recourse.
15. In that regard, the learned Senior counsel would rely on the decision of the Hon'ble Supreme Court of India in Gopal Vijay Verma vs Bhuneshwar Prasad Sinha And Others reported in (1982) 3 http://www.judis.nic.in8/18 Crl.R.C.(MD) No.426 of 2019 SCC 510, and he would rely on the observations of the Hon'ble Supreme Court of India which is extracted hereunder:
The High Court was clearly in error in thinking that the Magistrate could not take cognizance of a case upon complaint because he had earlier refused to take cognizance of the case on a police report. The Order of the High Court is set aside. The matter is remitted to the Chief Judicial Magistrate, Patna for disposal according to law. If the accused have any further objections to raise, they may do so before the Chief Judicial Magistrate.
16. The learned Senior counsel appearing for the second respondent would further rely on the decision in reported in Kishore Kumar Gyanchandanl Vs. G.D.Mehrotra and another reported in AR 2002 SC 483. He would draw attention of this Court to paragraph No.4 in the said judgment, which is extracted hereunder:
4. When the matter was listed before a two-Judge Bench of this Court, thinking that there is some divergence of views, it referred the matter to a three-Judge Bench. On examining the different provisions of the Code Criminal Procedure as well as the decisions of this Court relevant on the question, we see no divergence in the matter. It is too well settled that when police after investigation files a final form under Section 173 of the Code, the Magistrate may disagree with the conclusion arrived at http://www.judis.nic.in9/18 Crl.R.C.(MD) No.426 of 2019 by the police and take cognizance in exercise of power under Section 190 of the Code. The Magistrate may not take cognizance and direct further investigation in the matter under Section 156 of the Code. Where the Magistrate accepts the final form submitted by the police, the right of the complainant to file a regular complaint is not taken away and in fact on such a complaint being filed the Magistrate follows the procedure under Section 201 of the Code and takes cognizance if the materials produced by the complainant make out an offence. This question has been raised and answered by this Court in the case of Gopal Vijay Verma v. Bhuneshwar Prasad Sinha and Ors., whereunder the view of the Patna High Court to the contrary has been reversed. The Court in no uncertain terms in the aforesaid case has indicated that the acceptance of final form does not debar the Magistrate from taking cognizance on the basis of the materials produced in a complaint proceeding.
17. The above decisions would demonstrate the legal position that acceptance of final report is not a bar to the Magistrate to take cognizance on the basis of the materials produced in a complaint proceedings. Therefore, the learned Senior Counsel would submit that the apprehension expressed by the learned counsel for the petitioner is without any basis.
http://www.judis.nic.in10/18 Crl.R.C.(MD) No.426 of 2019
18. The learned Senior Counsel appearing for the first respondent would also rely on the decision of this Court in Crl.R.C.No. 1377 of 2018 dated 29.11.2018, wherein he would refer to the observations made in paragraph No.3, which is extracted hereunder:
3. From the above, it is very clear that the reasons which form the basis of the final decision by the learned Judicial Magistrate, are well founded and acceptable both legally and factually and the same need not call for interference from this Court. The case of the petitioner that there was no proper investigation, cannot also be accepted, since the police concerned has indeed investigated the case and on the basis of the materials, they found that there was no truth in the complaint filed by the petitioner herein.
The entire action of the defacto complainant/petitioner herein appears to avoid being shown as accused in the complaint filed under Section 138 of the Negotiable Instruments Act by the accused D.S.R.A.P.Pradap Singh.
19. In the above case, this Court has held that the entire action of the petitioner therein appears to avoid being shown as the accused in the complaint filed under Section 138 of Negotiable Instruments Act and therefore, the petitioner found fault with the closure report filed by the police which was accepted by the Magistrate. http://www.judis.nic.in11/18 Crl.R.C.(MD) No.426 of 2019
20. According to the learned Senior counsel, in this case also the petitioner herein in order to avoid to array his wife as accused under Section 138 of Negotiable Instruments Act proceeding, as a counter blast he has filed a false complaint against the first respondent and others and therefore, the Investigating Agency has rightly filed a closure report as ''mistake of fact'' which was rightly accepted by the learned Judicial Magistrate.
21. The learned Senior Counsel has elaborately summarized as to how the petitioner's wife avoiding to appear before the learned Judicial Magistrate, before whom the case under Section 138 of Negotiable Instruments Act is pending. He would submit that despite issuance of Non Bailable Warrant against the petitioner, she avoided more than one occasion by approaching this Court for obtaining certain directions. According to the learned Senior Counsel, even as on date, the petitioner has not chosen to appear before the learned Judicial Magistrate concerned notwithstanding pending execution of Non Bailable Warrant against her. In fact, the learned Senior Counsel would also submit that the petitioner has no loco standi to file the protest petition since the business transaction has been done by the concern where the proprietor is the petitioner's wife and therefore, he cannot first of all maintain such complaint or protest petition either. http://www.judis.nic.in12/18 Crl.R.C.(MD) No.426 of 2019
22. However, as regards the objection raised by the learned Senior Counsel appearing for the first respondent, the learned counsel for the petitioner would submit that although the proprietor is his wife yet, he is the sole in-charge of the business operation and he has been negotiating with the business partners and associates and in fact he has got few communications, which were addressed to him by other business associates.
23. This Court has paid its anxious consideration to the submissions made by the learned counsel for the petitioner, the learned Government Advocate appearing for the second respondent police and the learned Senior Counsel appearing for the first respondent.
24. The objection regarding locu standi of the petitioner herein to maintain the protest petition is rejected, by accepting the factum of the petitioner being full in-charge of the day to day administration of the business. As being full in-charge, it is his right to initiate or defend action on behalf of his wife.
25. Elaborate arguments have been advanced by the learned counsel for the petitioner that the Magistrate has not applied her mind http://www.judis.nic.in13/18 Crl.R.C.(MD) No.426 of 2019 to various contemporaneous documents which were made available to the police, that the police had not taken those documents for consideration while filing closure report and that the Magistrate unfortunately overlooked and not referred to those documents at all while dismissing the protest petition. However, this Court is of the considered view that the order ultimately passed by the Magistrate reflects application of mind. The order passed by the Magistrate contains only few lines yet, that shows proper application of mind. The contention raised on behalf of the petitioner about the Magistrate being swayed by the pendency of the cheque dishonour cases against the petitioner's wife is misplaced for the simple reason that in the course of business transaction cheques were also issued as part of the transaction and therefore there was nothing amiss for the Magistrate relying on the case filed against the petitioner's wife under Section 138 of Negotiable Instruments Act.
26. More over, legally speaking, there is no requirement under the provision of the Code of Criminal Procedure for the Magistrate to pass a very detailed order while dealing with the protest petition of this nature. It is enough that the Magistrate should consider the report of the police while taking the protest petition. It appears that the Magistrate has taken into consideration the findings of the police, http://www.judis.nic.in14/18 Crl.R.C.(MD) No.426 of 2019 which formed the basis of the closure report and ultimately the order passed by the Magistrate is fair enough to hold that it is a valid order in the eye of law. This Court does not find any infirmity at all in the approach of the Magistrate.
27. As far as the contention of the learned counsel for the petitioner that the Magistrate overlooked several contemporaneous documents, which would establish the factum of fraud played by the first respondent and his associates, this Court is of the view that in the process of business transaction between the business associates it has to be seen whether any particular action can be brought in the realm of criminality or not. It is entirely within the ambit of police investigation and thereafter within the judicial discretion of the Judicial Magistrate to take a decision whether there was a criminality in the allegation or not. However, this Court has to ensure that the discretion either to accept or reject the closure report by the Magistrate should not suffer from perversity. In this case, this Court does not find that the dismissal of protest petition suffer from any perversity.
28. Moreover, by dismissal of the protest petition, the petitioner is not being rendered remediless. As rightly held by the Hon'ble Supreme Court of India, dismissal of protest petition is not a bar for the Magistrate to deal with a private complaint. It is always open to the Magistrate to entertain a private complaint if the petitioner satisfies http://www.judis.nic.in15/18 Crl.R.C.(MD) No.426 of 2019 the Magistrate about the truthfulness or validity of the complaint. The dismissal of the revision petition or the protest petition is not a bar for the petitioner to approach the Magistrate court and file a private complaint under Section 200 Crl.P.C. Therefore, this Court finds that the petitioner is not left without any remedy he can always resort to invoke Section 200Cr.P.C to file a private complaint with the supporting materials. However, in order to allay the apprehension expressed by the learned counsel for the petitioner, it is made clear that the dismissal of the present revision petition or the protest petition by the learned Magistrate would not be held against the petitioner, when the petitioner chooses to file a private complaint under Section 200 Crl.P.C. Any observation made by this Court or the finding, from which conclusion reached by the Judicial Magistrate for dismissing the protest petition, need not influence the Magistrate, if he is called upon to consider a private complaint to be filed by the petitioner under Section 200 Cr.P.C.
In the light of the above, this Court finds that there is no merit in the present revision petition and the same is dismissed.
2 7.1 1.2 0 1 9 Index :Yes/No Internet:Yes/No CM http://www.judis.nic.in16/18 Crl.R.C.(MD) No.426 of 2019 To
1. The Judicial Magistrate Court No.III, Thoothukudi.
2. The Additional Public Prosecutor,Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in17/18 Crl.R.C.(MD) No.426 of 2019 V. PA R T HI B A N , J CM C rl. R. C .(MD) N o. 4 2 6 o f 2 0 1 9 2 7.1 1.2 0 1 9 http://www.judis.nic.in18/18