Madras High Court
Pandiraja vs M.Kumarasamy on 30 July, 2019
Crl.O.P.(MD)No.16 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON: 27.06.2023
DELIVERED ON :11.07.2023
CORAM
THE HON'BLE MR.JUSTICE K.MURALI SHANKAR
Crl.O.P.(MD)No.16 of 2019
Pandiraja ... Petitioner/Accused
Vs.
M.Kumarasamy ... Respondent/Complainant
PRAYER : Criminal Original Petition filed under Section 482 of
Criminal Procedure Code, to call for the records relating to the private
complaint in C.C.No.147 of 2017, on the file of the District Munsif cum
Judicial Magistrate Court, Thirumayam and quash the same as illegal.
For Petitioner : Mr.M.Ajmalkhan
Senior Counsel
for Ajmal Associates
For Respondent : Mr.B.Jameel Arasu
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https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.16 of 2019
ORDER
This Criminal Original Petition has been filed, invoking Section 482 Cr.P.C., seeking orders to call for the records in C.C.No.147 of 2017, pending on the file of the District Munsif cum Judicial Magistrate Court, Thirumayam and quash the same.
2. The petitioner is the sole accused in C.C.No.147 of 2017, on the file of the District Munsif cum Judicial Magistrate, Tirunelveli. The respondent/complainant has filed a private complaint under Section 200 Cr.P.C., and the learned Magistrate, after conducting an enquiry under Section 202 Cr.P.C., has passed an order under Section 204 Cr.P.C., for issuance of summons to the petitioner/accused, upon taking cognizance of the case for the alleged offences under Sections 420, 406, 465 and 468 I.P.c., in C.C.No.147 of 2017, on the file of the said Court. It is not in dispute that the petitioner/accused has found a Trust in the name and style of “Narivizhi Educational Trust” and the same was registered on 28.11.2005, that the petitioner/accused was the President and his wife Leelavathi was the Secretary, that the respondent/complainant was 2/25 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.16 of 2019 appointed as a Treasurer and that the petitioner's mother Sinthamani and his brother-in-law Karthick were the other members of the said Trust at the relevant point of time. It is also not in dispute that the respondent/complainant, at the time of formation of the trust, was working as a lecturer in Arumugam Seethaiyammal Arts College, Thiruppathur and that he is none other than the son of the petitioner's paternal uncle. It is also not in dispute that the petitioner has made initial contribution of Rs.1000/- to the above Trust and executed a gift deed in respect of 5 Acres of land to the said Trust, that the respondent/complainant has also executed a gift deed in respect of 3 Acres of land in favour of the Trust and that the Educational Institutions viz., Sastha Teacher Training College, Sastha Polytechnic College, Sastha College of Collegiate and Sastha Matriculation Higher Secondary School were functioning in the aforesaid land owned by the Trust.
3. The learned Senior Counsel appearing for the petitioner would mainly contend that the learned Magistrate, after the alleged enquiry under Section 202 Cr.P.c., has passed a cryptic order which does not disclose the existence of a prima facie materials to proceed against the 3/25 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.16 of 2019 accused, that though the Magistrate is duty bound to indicate his satisfaction that there are sufficient grounds for proceeding against the accused, he has passed a non-speaking order and that therefore, the order taking cognizance and the consequent order for issuance of process which are in violation of the settled legal position and settled procedures are only to be considered as illegal and on that ground alone, the proceedings are liable to be quashed.
4. The learned Counsel for the respondent/complainant would submit that the learned Magistrate, after the receipt of the private complaint filed under Section 200 Cr.P.c., recorded the sworn statement of the complainant and after conducting proper enquiry under Section 202 Cr.P.C., has passed the order recording his satisfaction that sufficient grounds for proceeding under Sections 420, 406, 465 and 468 I.P.C., against the accused were made out and on that basis, ordered for taking cognizance and for issuance of process. He would further submit that no legal provision mandates that the order passed under Section 204 Cr.P.C., must be a reasoned and speaking order and that therefore, the 4/25 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.16 of 2019 order of the learned Magistrate is perfectly valid and in accordance with law.
5. The learned Senior Counsel for the petitioner has relied on the judgments of the Hon'ble Supreme Court in Pepsi Foods Ltd., and another Vs. Special Judicial Magistrate and Others reported in (1998)5 SCC 749 and GHCL Employees Stock Option Trust Vs. India Infoline Limited reported in (2013)4 SCC 505 and the relevant passages are extracted hereunder:
(i) Pepsi Foods Ltd., and another Vs. Special Judicial Magistrate and Others [ (1998)5 SCC 749]
28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. it is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and 5/25 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.16 of 2019 would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused.
Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused. “
(ii) GHCL Employees Stock Option Trust Vs. India Infoline Limited [ (2013)4 SCC 505].
“14. Be that as it may, as held by this Court, summoning of accused in a criminal case is a serious matter. Hence, criminal law cannot be set into motion as a matter of course. The order of Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The Magistrate has to record his satisfaction with regard to the existence of a prima facie case on the basis of specific allegations made in the complaint supported by satisfactory evidence and other material on record.” 6/25 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.16 of 2019
6. In both the above decisions, the Hon'ble Apex Court has specifically observed that summoning of an accused in a criminal case is a serious matter and hence, criminal law cannot be set into motion as a matter of course.
7. The learned Senior Counsel has also relied on the judgment of the Hon'ble Supreme Court in Sunil Bharti Mital Vs. Central Bureau of Investigation reported in (2015)4 SCC 609, wherein the Hon'ble Apex Court has held as follows:
“53. However, the words "sufficient grounds for proceeding"
appearing in the Section are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect.” 7/25 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.16 of 2019
8. The learned Senior Counsel for the petitioner has relied on the decision of this Court in M/s Anamallai's Motors Private Limited through its Managing Director and two others Vs. R.Subbaiah (Crl.O.P. (MD)Nos.12790 and 14815 of 2014, dated 30.07.2019), wherein a learned Judge of this Court, after referring to the various judgments of the Hon'ble Supreme Court, has held that while taking cognizance and issuing summons, the learned Judicial Magistrate, though not required to give elaborate reasons, should indicate his application of mind in the order and state the reasons for issuing summons, especially, when the accused are Managing Director and the employees of the company, regarding their involvement in the commission of offence.
9. In the above decision case, a private complaint came to be filed against the Company, its Managing Director, authorized dealer, Sales Manager and Sales and Service Manager of the concerned branch and the learned Judge, by observing that the materials available on record did not disclose the role played by the accused 2 to 5 and no materials available to show that they have acted with any criminal intent and that if at all any offence is committed, it could be attributed only to the first accused 8/25 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.16 of 2019 Company, the other accused being the Managing Director, authorized dealer of the car and its employees cannot be made liable vicariously.
10. No doubt, it is settled law that when the Company is the offender, vicarious liability of the Directors cannot be imputed automatically in the absence of any staturoy provision to that effect. In the case on hand, the learned Magistrate, after recording the sworn statement of the complainant, upon perusing the private complaint and other documents filed along with the complaint, has passed the impugned order taking cognizance. As rightly pointed out by the learned Senior Counsel for the petitioner, it is a cryptic orde. No doubt, the Magistrate has to record his satisfaction that there are sufficient grounds for proceeding against the accused.
11. In Kanti Bhadra Shah and another Vs. State of West Bengal reported in (2000)1 SCC 722, the Hon'ble Apex Court has specifically held that there is no legal requirement for the trial Court to write an elaborate order for issuance of process and the relevant passages are extracted hereunder:
9/25
https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.16 of 2019 “12. If there is no legal requirement that the trial court should write an order showing the reasons for framing a charge, why should the already burdened trial Courts be further burdened with such an extra work. The time has reached to adopt all possible measures to expedite the the court procedures and to chalk out measures to avert all roadblocks causing avoidable delays. If a Magistrate is to write detailed orders at different stages merely because the counsel would address arguments at all stages, the snail paced progress of proceedings in trial courts would further be slowed down. We are coming across interlocutory orders of Magistrates and Sessions Judges running into several pages. We can appreciate if such a detailed order has been passed for culminating the proceedings before them. But it is quite unnecessary to write detailed orders at other stages, such as issuing process, remanding the accused to custody, framing of charges, passing over to next stage in the trial. It is a salutary guideline that when orders rejecting or granting bail are passed, the Court should avoid expressing one way or other on contentious issues, except in cases such as those falling within Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985.”
12. At this juncture, it is also necessary to refer the judgment of the Hon'ble Supreme Court in Bhushan Kumar and another Vs. State (NCT 10/25 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.16 of 2019 of Delhi) and another reported in (2012)5 SCC 424, wherein another judgment of the Hon'ble Supreme Court in Dy.Chief Controller of Imports and Exports Vs. Roshanlal Agarwal and others reported in (2003)4 SCC 139 was referred and the relevant passage is extracted hereunder:
“9. In determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. This question was considered recently in U.P. Pollution Control Board v. Mohan Meakins Ltd.(2000) 3 SCC 745 and after noticing the law laid down in Kanti Bhadra Shah v. State of W.B. (2000) 1 SCC 722, it was held as follows: (SCC p. 749, para 6) The legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing process. There is no such legal requirement imposed on a Magistrate for passing detailed order while issuing summons. The process issued to accused cannot be quashed 11/25 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.16 of 2019 merely on the ground that the Magistrate had not passed a speaking order.”
13. The Hon'ble Apex Court, by referring to its earlier decision, has specifically settled the legal position that the order passed by the Magistrate could not be faulted with only on the ground that summoning order was not a reasoned order and that therefore, the process issued to the accused cannot be quashed merely on the ground that the Magistrate had not passed a speaking order. Considering the above, the objections raised by the learned Counsel for the petitioners, which is devoid of merits is liable to be rejected.
14. Now turning to the merits of the case, it is the case of the complainant that the bank operations should be jointly operated by the President and the Treasurer as per the Trust deed, that the two bank accounts were operated on behalf of the Trust one in Bank of Baroda and the other in Indian Bank, that the petitioner and the respondent had been jointly operating Bank of Baroda transactions, while Indian Bank account has been solely operated by the petitioner, that the respondent has found that the petitioner has made huge misappropriation in the Bank 12/25 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.16 of 2019 of Baroda accounts without the knowledge of the respondent, that on a perusal of the bank records, 33 cheques were shown to be issued by the petitioner without the knowledge of the respondent by forging the signature of the defacto complainant, that the petitioner has cheated and swindled the Trust money of Rs.51,37,000/- for his personal benefits, that the petitioner has been misusing his capacity in the Trust and acted against the welfare of the Trust and that therefore, the respondent was constrained to lodge the complaint before the Court of the Judicial Magistrate, Thirumayam.
15. The case of the petitioner/accused is that the defacto complainant is the real culprit, that the petitioner has been performing his duties as per the norms of the Trust without any remarks from the members till now, that when the defacto complainant was performing his duties in the Trust in 2012, the petitioner found that the defacto complainant has made a huge misappropriation and swindle the Trust money on various ways, that the petitioner had questioned the said illegal activity of the complainant and the said matter was brought to the knowledge of the Trust members, that the Trust members sought for an 13/25 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.16 of 2019 explanation from the defacto complainant, but he did not give any suitable explanation and had not come forward to settle the misappropriate amount and that therefore, a resolution was passed by the Board members removing the respondent/complainant from his post on 15.06.2012.
16. It is the further case of the petitioner that 4 years later, in the year 2016, the respondent lodged a complaint before the District Crime Branch, Pudukkottai, that the Inspector of Police, District Crime Branch, Pudukkottai conducted an enquiry by calling the parties concerned, that the Manager of Bank of Baroda has given a statement that there was no impersonation or manipulation made out in the alleged cheques by the petitioner and the signatures were properly tallied with the defacto complainant's signature and that therefore, the defacto complainant's complaint was ordered to be closed by the District Crime Branch.
17. The learned Senior Counsel for the petitioner would contend that the respondent/complainant in the private complaint filed under Section 200 Cr.P.C., has nowhere whispered about the earlier complaint 14/25 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.16 of 2019 filed before the District Crime Branch, the enquiry conducted by them and the closure of the complaint, that the defacto complainant even in his sworn statement, has not stated anything about the earlier complaint and that the respondent has purposely suppressed the above aspects before the concerned Court. Admittedly, the respondent/complainant has not offered any reason or explanation for not disclosing about his filing of the earlier complaint before the District Crime Branch and the closure of the same subsequently.
18. When the above matter was taken up for hearing earlier, this Court, considering the submissions made by the learned Senior Counsel for the petitioner with regard to the earlier complaint, directed the Registry to call for a report from the District Munsif cum Judicial Magistrate, Thirumayam with regard to the first complaint filed before the District Crime Branch and in pursuance of the same, the learned District Munsif cum Judicial Magistrate has called for the same from the District Crime Branch, Pudukkottai and produced the copy of the closure report. The Inspector of Police, District Crime Branch, Pudukkottai has submitted a letter wherein it has been stated that since the enquiry was 15/25 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.16 of 2019 conducted 3 years before, as per the circular of the Superintendent of Police, all the records were submitted to the office of the District Superintendent of Police and that therefore, they are submitting a copy of the report taken from the office computer. It is evident from the said report, that the police has recorded the statement of the petitioner as well as the respondent, the Manager of the Bank of Baroda and two other private persons for whom the cheques were issued for the purchase of construction materials and their encashment of the same.
19. It is pertinent to note that the petitioner has given a statement that since he proposed for purchase of land, some parties had raised objections and hence, the petitioner had taken the sale deed in the name of the respondent/complainant in respect of 9.36 acres of land, that subsequently the respondent had transferred 6.36 acres in favour of the petitioner and that since the respondent was a Government servant and has to pay the income tax, he had executed a gift deed in favour of the Trust with respect to the remaining 3 acres of land, that the respondent used to come to the College once in a week for half an hour, that subsequently, as per the recommendation of the respondent, one Chitra 16/25 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.16 of 2019 was appointed as an accountant, that since the said Chitra and her men had misappropriated the funds, a complaint was lodged before K.Pudupatti police station, that the respondent has directed the petitioner not to prefer any complaint against the said Chitra and others, but the complaint came to be registered in Cr.No.21 of 2012 and that since the respondent had been acting against the interest of the Trust, he was removed from the Trust vide a resolution passed by the Trust on 15.06.2012.
20. It is pertinent to note that after he was removed from the Trust on 15.06.2012, the first complaint came to be lodged with the District Crime Branch on 12.03.2016 nearly after four years. As rightly contended by the learned Senior Counsel for the petitioner, it is not the case of the respondent that he has raised objections with regard to the alleged misappropriation of Trust funds by the petitioner, at the time of his removal from the Trust. The petitioner has also produced a copy of the statement given by the Bank of Baroda Manager before the Inspector of Police, District Crime Branch, wherein he has stated that no discrepancy was noticed by the Bank officials, that since the signatures 17/25 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.16 of 2019 of both the petitioner and the respondent tallied and compared with the original records of the Bank documents, the cheques mentioned by the respondent were discharged on proper clearance and that their Bank did not receive any stop payment intimation.
21. As rightly pointed out by the learned Senior Counsel for the petitioner, the respondent has produced the copy of the Trust deed, copies of the gift deed executed by the petitioner as well as the respondent and the letter sent to the Bank of Baroda Manager on 13.11.2015 and again on 14.05.2016, the copy of the complaint sent to the banking Ombudsman and the copy of the complaint sent to the Inspector of Police, Superintendent of Police and D.I.G., of police.
22. The main contention of the respondent/complainant is that the petitioner had issued 33 cheques by forging the signature of the respondent and misappropriated the Trust funds to the tune of Rs.51,37,000/- and except the sworn statement, the respondent has not chosen to examine any other witness to prove the alleged complaints. 18/25 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.16 of 2019
23. As rightly contended by the learned Senior Counsel for the petitioner, in case if the petitioner had furnished the particulars of the earlier complaint, the enquiry conducted by the District Crime Branch and the closure of the same, it cannot be stated that the learned Magistrate would have taken cognizance of the case. The respondent, after fully knowing that the Magistrate could not have taken the cognizance of the case, if the particulars relating to earlier complaint were given, has purposely suppressed the same. Except alleging that the petitioner had forged his signature and misappropriated a sum of Rs.51,37,000/-and thereby he had committed cheating, misappropriation and forgery, but he has not elaborated anything further.
24. As rightly contended by the learned Senior Counsel for the petitioner, the entrustment of the property is an essential ingredient to cause the offence under Section 406 I.P.C. But in the case on hand, the private complaint does not disclose the entrustment of the properties to the accused. In order to attract the offence under Section 420 I.P.C., the intention to deceive is an essential ingredient and the prosecution has to 19/25 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.16 of 2019 prove that the petitioner had intention to cheat even from the very beginning.
25. A person when he makes any false document or fabricated record with the criminal intention to cause injury or damage to the other person or public; cause any person part with the property; enter into any express or imply contract; support any claim or title, commit or may commit any fraud, then that person will be liable for the offence of forgery under Section 463 I.P.C. The punishment for the offence of forgery has been prescribed under Section 465 I.P.C. To attract the provisions of Section 468 I.P.c., the forgery must be committed with intention that the document or an electronic record shall be used for the purpose of cheating. For holding a person guilty under the ambit of this Section, it is to be proved that he has made a wrongful gain by deceiving the person or other entity and that it is necessary that some kind of advantage is enjoyed by the person deceiving other. Though the respondent has alleged that the petitioner has committed the offences under Sections 420, 406, 465 and 468 I.P.C., he has neither shown the particulars nor any materials so as to attract the above offences. 20/25 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.16 of 2019
26. At this juncture, it is necessary to refer the land mark judgment of the Hon'ble Supreme Court in State of Haryana and Ors. v. Bhajan Lal and Others, reported in 1992 Supp (1) SCC 335, wherein the Hon'ble Apex Court enumerates seven categories of cases where the power can be exercised under Section 482 Cr.P.C., and the same are extracted hereunder:
“(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the 21/25 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.16 of 2019 same do not disclose the commission of any offence and make out a case against the accused.
(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 22/25 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.16 of 2019
27. On considering the entire facts and circumstances and the legal position above referred, this Court has no hesitation to hold that the respondent/complainant, after four years since his removal from the Trust, has lodged a complaint before the police and after the closure of the same, has filed the present private complaint suppressing what had happened earlier and has come to the Court with malafide intention and as such, the same would amount to abuse of process of law. Hence, this Court concludes that the proceedings in C.C.No.147 of 2017, on the file of the District Munsif cum Judicial Magistrate Court, Thirumayam are liable to be quashed.
28. In the result, the Criminal Original Case is allowed and the proceedings in C.C.No.147 of 2017, on the file of the District Munsif cum Judicial Magistrate Court, Thirumayam are quashed.
11 .07.2023 NCC : Yes / No Index : Yes / No Internet : Yes / No SSL 23/25 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.16 of 2019 To The District Munsif cum Judicial Magistrate Court, Thirumayam.
24/25 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.16 of 2019 K.MURALI SHANKAR,J.
SSL PRE-DELIVERY ORDER MADE IN Crl.O.P.(MD)No.16 of 2019 11 .07.2023 25/25 https://www.mhc.tn.gov.in/judis