Madras High Court
S.Balaji vs The State Represented By on 8 April, 2024
Author: M.Dhandapani
Bench: M.Dhandapani
Crl.M.P.No.6048 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.04.2024
CORAM:
THE HONOURABLE MR. JUSTICE M.DHANDAPANI
Crl.MP.No.6048 of 2024
in
Crl.R.C.SR.No.55948 of 2023
S.Balaji ...Petitioner
Vs.
1.The State represented by
The Inspector of Police,
Central Crime Branch,
Vepery, Chennai-600 007.
2.Ilan Kumaran, Director,
M/s.Promark Projects (P) Ltd.,
3.Sudha Ilan Kumaran, Director,
M/s.Promark Projects (P) Ltd., ...Respondents
Prayer in Crl.MP.No.6048 of 2024: Petition filed under Section 5 of the
Limitation Act to condone the delay of 3 days in filing the above Criminal
Revision as against the order dated 12.06.023 made in Crl.M.P.No.8123 of
2023 passed by the learned Metropolitan Magistrate Court (for the Exclusive
Trial for Central Crime Branch Cases, Chennai) Egmore, Chennai.
Prayer in Crl.R.C.SR.No.55948 of 2023: Criminal Revision case filed
under Section 391 r/w 401 of Cr.P.C, to set aside the order dated
12.06.2023 passed by the learned Metropolitan Magistrate court (for the
Exclusive Trial for Central Crime Branch Cases, Chennai) Egmre, Chennai,
made in Crl.M.P.No.8123 of 2023 and allow the above Criminal Revision.
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https://www.mhc.tn.gov.in/judis
Crl.M.P.No.6048 of 2024
For Petitioner : M/s.C.S.K.Sathish
For Respondent : Mr.A.Gopinath,
Government Advocate (Crl.Side)
ORDER
This Criminal Miscellaneous Petition has been filed seeking to condone the delay of 3 days in filing the above Criminal Revision as against the order dated 12.06.023 made in Crl.M.P.No.8123 of 2023 by the learned Metropolitan Magistrate Court (for the Exclusive Trial for Central Crime Branch Cases, Chennai) Egmore, Chennai.
2. It is the case of the petitioner that he is the Power Agent of his brother namely S.Ganesh and his wife Vandhana Ganesh vide Power of Attorney dated 09.11.2021. In the year 2019 during the month of November, the respondents 2 & 3 who are the directors of M/s.Promark Projects (P) Ltd., (Company, in short) approached the petitioner and his wife and requested to furnish guarantee and also to offer their property situated at “Godrej Woodsman Estate”, B-503, Bellary Road, Hebbal Kempapura, Bangalore, Karnataka -560024 as a Collateral security to City 2/8 https://www.mhc.tn.gov.in/judis Crl.M.P.No.6048 of 2024 Union Bank, Abhiramapuram Branch, Chennai to enable their Company to avail an Over Draft (OD) facility from the bank with a limit of Rs.1,00,000/- for the purpose of development of the Company. Accordingly, the MoU dated 16.11.2019 was entered into between the parties. As per the terms of said MoU, the Company, the respondents 2 & 3 have to pay a guarantee commission of Rs.1,00,000/- to the petitioner and as per the said MoU, the petitioner had also entrusted the right and duty to redeem the property mortgaged with the bank within three months of resignation of Vandana Babjee from the Company which was agreed by the respondents 2 & 3 based on which, vide Sanction letter dated 04.03.2020, the bank gave a Secured Over Draft facility without DP with a limit of Rs.1 Crore to the Company.
3. However, the respondents 2 & 3 have not used the finance sanctioned by the bank for the intended purpose and were also completely irregular in payment of the assured guarantee commission to the petitioner. In these circumstances, said Vandana Ganesh was constrained to resign from the Company on 31.08.2021. Despite the request made by the 3/8 https://www.mhc.tn.gov.in/judis Crl.M.P.No.6048 of 2024 petitioner and his wife through an e-mail 11.09.2021 to get their property redeemed from the bank as per the terms of MoU, the respondents 2 & 3 did not come forward to redeem the property by repaying the finance obtained from the bank. As a result, SARFAESI proceedings were initiated by the bank as against the petitioner's property under Section 13(4) of the SARFAESI Act, 2002 and symbolic possession was taken. Aggrieved by which, the petitioner had lodged a complaint before the 1 st Respondent Police to initiate appropriate action against the respondents 2 & 3 however, the 1st respondent had refused to register a complaint citing the arbitration clause in the MOU and also by misconceiving the dispute between the parties to be a civil dispute. Hence, the petitioner made a complaint under Section 156(3) of Cr.P.C before the trial court in Crl.M.P.No.8123 of 2023, however, the trial court had erroneously rejected the petitioner's complaint vide impugned order dated 12.06.2023. Challenging the same, the present revision has been filed.
4. Learned counsel for the petitioner would submit that though the petitioner had not invested any amount but however he has mortaged his 4/8 https://www.mhc.tn.gov.in/judis Crl.M.P.No.6048 of 2024 valuable property as a collateral security for the purpose of getting guarantee commission from the respondents/accused persons based on which, the respondents have availed a loan to the tune of Rs.1 Crore from the bank and have failed to pay the assured guarantee commission to the petitioner. He further submitted that though the petitioner had entrusted the right to the 2nd respondent, however, 2nd respondent with dishonest intention has committed breach of trust by refusing to redeem the property as per MoU dated 16.11.2019. Without properly adjudicating the aforesaid issue, the trial court has mechanically rejected the complaint made under Section 156(3) of Cr.P.C by the petitioner which is not sustainable.
5. Learned Government Advocate appearing for the 1 st respondent would submit that it is purely a civil dispute between the petitioner and the respondents 2 & 3 and therefore, the same has to be adjudicated only before the concerned Civil Court. The said issue was elaborately considered by the trial court, the impugned order made in Crl.M.P.No.8123 of 2023 does not require any interference.
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6. Since no adverse order is being passed against the respondents 2 & 3, notice to respondents 2 & 3 is dispensed with.
7. The complaint filed under Section 156(3) of Cr.P.C in Crl.M.P.No.8123 of 2023 as against the respondents 2 & 3 has been dismissed by the trial court citing the arbitration clause available in the MoU entered into between the parties.
8. Though the court below has dismissed the complaint of the petitioner on the ground that an alternative remedy of arbitration is provided for under the MoU and the petitioner cannot rush with the complaint without exhausting the said remedy, however, learned Government Advocate submits that the issue involved in the present case is purely civil in nature and, therefore, the petitioner, if at all aggrieved, has to go before the civil court.
9. This Court, when it expressed its mind that the stand of the respondents is correct and that it is a purely civil dispute, which has to be 6/8 https://www.mhc.tn.gov.in/judis Crl.M.P.No.6048 of 2024 adjudicated before the appropriate forum, learned counsel for the petitioner submitted that this Court may grant liberty to the petitioner to work out his remedies before the appropriate civil court.
10. In view of the submissions made by the learned counsel for the petitioner and learned Government Advocate, this Court without expressing any opinion on the merits of the case and without interfering with the impugned order passed by the trial court, grants liberty to the petitioner to workout his remedy before the competent civil court.
11. Accordingly, this Criminal Miscellaneous Petition stands dismissed. In view of the aforesaid order, Criminal Revision Case is rejected in the SR stage itself.
08.04.2024
NHS
Index : Yes/No
Speaking order : Yes/No
NCC : Yes/No
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Crl.M.P.No.6048 of 2024
M.DHANDAPANI, J.
NHS
To
1. The learned Metropolitan Magistrate Court
(for the Exclusive Trial for Central Crime Branch Cases, Chennai) Egmore, Chennai.
2. The Inspector of Police, Central Crime Branch, Vepery, Chennai-600 007.
Crl.MP.No.6048 of 2024
in Crl.R.C.SR.No.55948 of 2023 08.04.2024 8/8 https://www.mhc.tn.gov.in/judis