Madras High Court
Sm.N.Lakshmanan vs Rajeshwari on 12 September, 2022
Author: G.Ilangovan
Bench: G.Ilangovan
EFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 12/09/2022 CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN Crl.OP(MD)No.6540 of 2018 and Crl.MP(MD)No.3121 of 2018
1.SM.N.Lakshmanan
2.S.Suppammal
3.SM.N.Ramachendran
4.A.T.Sambantham
5.A.N.Narayanan :Petitioners/A1 to A5 Vs. Rajeshwari : Respondent/De-facto Complainant Prayer: Criminal Original Petition is filed under Section 482 Cr.P.C., to call for the records relating to the case in CC No.69 of 2014 on the file of the Judicial Magistrate, Devakottai and quash the same.
For Petitioners Nos.1, 2, 4 and 5 : Mr.C.Selvakumar For 3rd Petitioner : Mr.C.Muthusaravanan For Respondent : Mr.Pala Ramasamy (No appearance) 1/16 https://www.mhc.tn.gov.in/judis O R D E R This criminal original petition is filed seeking quashment of the case in CC No.69 of 2014 on the file of the Judicial Magistrate, Devakottai.
2.The facts in brief:-
The de-facto complainant lodged a private complaint under section 156(3) Cr.P.C before the Judicial Magistrate No.1, Sivagangai with the following allegations:- A1 and A3 brothers and the de-facto complainant is their sister. A2 is the wife of A1. A4 and A5 are the relatives of A1 and A3. A1 represented that he got money in New Zealand Bank and if the money is required for the Real Estate Business undertaken by the de-facto complainant, he is ready to give the same. So believing the words of A1, the de-facto complainant received money on various dates to the tune of Rs.1,96,30,000/- through bank transaction.
3.Out of the above said amount, as per the direction given by A1, she paid Rs.30,40,000/- to Annamalai Chettiar through her bank account and he is the father of A2 and father in law of A1. Apart from that, Rs.4,10,000/- was 2/16 https://www.mhc.tn.gov.in/judis paid to the account of A1. Apart from that she has also paid Rs.8,30,000/- on various dates to A1, when he was available in India. As per the instructions given by A1, for the purpose of purchasing jewels Rs, 19,80,000/- was paid to one Dr.Manimegalai and Rs.1,00,000/- was paid to Kalyani Achi, who is the mother in law of A1. Rs.2,00,000/- was paid to A2 for the purpose of paying premium amount and cash of Rs.40,000/- was also paid for the purpose of purchasing the property and also paid to A3 a sum of Rs.2,70,000/- on various dates. Similarly, for purchasing the property in the name of A2, Rs.24,10,000/- was also paid. So by this way, a total amount of Rs.1,38,40,000/- was paid. Apart from that, as per the instructions given by A1, 16,00,000/- was also paid. So the balance amount of Rs.46,00,000/- remaining to be paid by A1 and he promised to return the same, but later defaulted. Over the above said transactions, A1 issued a legal notice, for which, reply was also sent by the de-facto complainant. In the above said notice, she has accepted that if the remaining amount is paid, she is ready to pay the same. Later the accused demanded partition of the ancestral properties. Apart from that, they also inimical towards the de-facto complainant over the marriage proposal. To wreck vengeance, A1 to A5 hatched criminal conspiracy and lodged a false 3/16 https://www.mhc.tn.gov.in/judis complaint before the District Crime Branch, Sivagangai, as if the money, which was borrowed by the de-facto complainant was cheated by her. On 24/11/2010, the accused along with wordy elements trespassed into the house and the Witness No.1 was dragged out of the house and taken to AWPS Station, Sivagangai, where she was retained till 30/11/2020 illegally and by detaining, they demanded Rs.30,00,000/- immediately. Apart from that, they have also demanded cheque amount of Rs.1,75,00,000/-. So without any option cheque amount for Rs.1,60,00,000/- and Rs.15,00,000/- has been obtained. Apart from that, they have also obtained Rs.10,00,000/- in cash. They also demanded balance amount of Rs.20,00,000/- for releasing the witness No.1. They have also obtained signatures in blank cheques, bond papers etc. Over the above said occurrence, the complaint was lodged. Based upon the above said occurrence, the case was registered in Crime No.57 of 2011 for the offences under sections 120(B), 342, 347, 355, 365, 384, 500 and 506(2) IPC.
4.After investigation, the Investigating Officer came to the conclusion that no office is made out and it is a clear factual mistake, which has been given as a counter blast to the case, which was given by the accused persons. 4/16 https://www.mhc.tn.gov.in/judis
5.The learned Magistrate on the basis of the protest petition recorded the finding that sufficient materials are available and prima facie case has been made out and taken cognizance. Accordingly, the complaint was taken cognizance in CC No.69 of 2014.
6.Seeking quashment of the same, this petition has been filed by the petitioners on very many factual and legal grounds. The main ground is that the learned Magistrate, who took cognizance of the offence on the basis of the complaint, failed to record the subjective satisfaction and necessity of taking cognizance and the very nature and taking cognizance is illegal.
7.Heard both sides.
8.For better appreciation of the issue, the background facts requires to be narrated. CC Nos.41 and 42 of 2014 have been initiated on the basis of the cheques that have been issued by the de-facto complainant.
9.Now it is the turn of the de-facto complainant to lodge a complaint stating that the above said cheques have been obtained by threat, coercion and force by the accused 5/16 https://www.mhc.tn.gov.in/judis persons by detaining the husband of the de-facto complainant in AWPS, Sivagangai. But no case was registered over the above said complaint given by the de-facto complainant. So the present petition filed under section 156(3) Cr.P.C before the concerned Magistrate court and that was forwarded, over which the above said case has been registered as mentioned earlier. While taking cognizance, the trial court brushed aside the final report, that has been filed by the Investigating Officer to the effect that no case has been made out. After going through the entire materials, it has been recorded to the effect that sufficient materials are available for framing charges and the petitioners have not filed any petition seeking discharge of the offence and cognizance was also not challenged and only after hearing both sides, the above said order has been passed. Consequently, charges were also framed. At this stage, this petition came to be filed seeking quashment of the entire proceedings.
10.It is seen that it is a long standing enmity between the close relatives. This complaint is nothing, but counter blast, which can be considered as a case of the defence that have been put forth by the complainant in the above said cheque cases.
6/16 https://www.mhc.tn.gov.in/judis
11.A report has been called for from the Judicial Magistrate, Devakottai as to the present position of the case. He has submitted a report stating that originally, the above said complaint was registered as stated above and taken cognizance by the Judicial Magistrate No.1, Sivagangai in CC No.46 of 2014 and later that was transferred to the Judicial Magistrate, Devakottai and renumbered as CC No.69 of 2014. Charges were framed on 05/02/2018 and subsequent to the above said, this petition has been filed and because of the stay that has been granted by this court, it is still pending.
12.Another development has also been brought to the notice of this court by the petitioner in the form of transfer order, that has been passed by the Chief Judicial Magistrate, Sivagangai, by exercising the jurisdiction under section 407 Cr.P.C., Tr.Cr.MP Nos.1347 and 1349 of 2013 were filed by the present de-facto complainant namely Rajeswari to transfer CC Nos.52 and 53 of 2013 to some other Magistrate court. The above said cases have been registered on the basis of the dishonoured cheques as mentioned above. Both the cases have been withdrawn from the file of the Judicial Magistrate, Karaikudi and transferred to the Judicial Magistrate, Devakottai, by 7/16 https://www.mhc.tn.gov.in/judis order, dated 03/03/2014. Now, it has been re-numbered in the above said court as stated above.
13.Later again, the de-facto complainant in this case filed Tr.Crl.MP Nos.436 and 437 of 2014 seeking transfer of CC Nos.41 and 42 of 2014 from the file of the Judicial Magistrate, Devakottai to the Judicial Magistrate No.1, Sivagangai for simultaneous trial along with CC No.46 of 2014. By considering the fact that all the three cases arise out of the same transaction, the learned Chief Judicial Magistrate, Sivagangai thought it fit to transfer CC No.46 of 2014 pending on the file of the Judicial Magistrate No.1, Sivagangai and transferred the same to the Judicial Magistrate, Devakottai for simultaneous trial. This is the history of the proceedings.
14.From the history, it is seen that what has been ordered by the learned Chief Judicial Magistrate, Sivagangai is proper on facts and circumstances of the case, because this complaint is nothing, but counter blast or counter blast to the proceeding under section 138 of the Negotiable Instruments Act, that has been instituted by the petitioners.
8/16 https://www.mhc.tn.gov.in/judis
15.Now after all these things, the petitioner filed a petition in Crl.OP(MD)Nos.16278 of 2014 and 16277 of 2014 to quash the proceedings in Crime Nos.46 of 2014 and 73 of 2011. In so far as the Crime Nos.73 of 2011 is concerned, it was quashed by the Principal Seat, on 15/12/2014 . So far as the present case is concerned, on the basis of the jurisdiction that petition was dismissed. The date of dismissal is 29/10/2014. later after a long gap of 4 years, this petition has been filed seeking quashment of the case.
16.As mentioned earlier, the legality of taking cognizance has been challenged. Now we shall straight away go to the judgment in the case of Mehmood Ul Rehman Vs. Khazir Mohammed Tunda and others [(2015)12 SCC 420] wherein the Hon'ble Supreme Court has pointed out that taking cognizance should not be a mechanical process and there must be sufficient indication in the order to show that there was an application of mind by the court.
17.Para 22 of the above said judgment is relevant, which is extracted hereunder:-
22.The steps taken by the Magistrate 9/16 https://www.mhc.tn.gov.in/judis under Section 190 (1) (a) CrPC followed by Section 204 Cr.P.C should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, to appear before the Court.
The satisfaction on the ground for
proceeding would mean that the facts
alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would, prima facie, make the accused answerable before the Court. No doubt, no formal order or a speaking order is required to be passed at that stage. The Code of Criminal Procedure requires speaking order to be passed under Section 203 Cr.P.C when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a Post Office in taking cognizance of each and 10/16 https://www.mhc.tn.gov.in/judis every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 Cr.P.C, if any, the accused is answerable before the Criminal Court, there is ground for proceeding against the accused under Section 204 Cr.P.C, by issuing process for appearance. The application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190 /204 Cr.P.C, the High Court under Section 482 Cr.P.C is bound to invoke its inherent power in order to prevent abuse of the power of the Criminal Court.
To be called to appear before the Criminal 11/16 https://www.mhc.tn.gov.in/judis Court as an accused is serious matter affection one's dignity, self respect and image in Society. Hence, the process of Criminal Court shall not be made a weapon of harassment.
18.The above said principle has been followed by the coordinate Bench of this court in the case of V.Ganesan and another Vs. The Inspector of Police, Ayioor Police Station, Kariapatti Taluk, Virudhunagar District (Crl.OP(MD)No.14407 of 2012, dated 04/07/2018) wherein it is observed that the application of mind of the Magistrate, who took cognizance must be indicated in the order, but there cannot be no quarrel in the proposition of law as enunciated by the Hon'ble Supreme Court. As mentioned earlier, an order has been passed by the Magistrate, while framing the charge sufficient materials are available and this is enough for taking cognizance and for framing charges also.
19.The next contention on the part of the petitioners is that with regard to the procedure to be adopted at the time of considering the protest petition, that has been elaborately discussed as decided in various judgments.
20.In Narayanamma and others Vs. Chikka Venkateshaiah 12/16 https://www.mhc.tn.gov.in/judis (2019-2-LW (Crl)522) it has been stated that if the Magistrate wants to convert the protest petition into private complaint, he has to pass orders by perusing the statement that has been recorded during the course of investigation by the police.
21.No doubt that some sort of mistake is on the part of the trial court. After closure report, it appears that notice has been sent to the de-facto complainant. The the complaint has been presented, on 07/07/2014 after recording sworn statement of the complainant, finding that there was prima facie material available against the accused persons, on 13/04/2014 it has taken cognizance. So the single word mentioned by the learned Judicial Magistrate to the effect that prima facie case in the criminal complaint for the offences under sections 120-B, 355, 384, 506(II) IPC is seriously disputed by the petitioners.
22.No doubt that the protest petition ought to have been discussed. There is some sort of misconception in the mind of court, while taking cognizance. There is no indication in the order to the effect that materials have been collected during the course of investigation and it has been taken into account. It is nothing, but 13/16 https://www.mhc.tn.gov.in/judis irregularity. After a lapse of several years, that too after framing of the charges, this petition came to filed. More-over, as mentioned above, this court cannot go into merits of the above said case initiated under section 138 of the Negotiable Instruments Act by the accused person. Since all the cases are going to be tried together and dispose of simultaneously, I am of the considered view that at this length of the time, it is not proper on the part of this court to quash the proceedings. So the this petition is liable to be dismissed.
23.In the result, this criminal original petition is dismissed. But however, considering the relationship between the parties, the personal appearance of the petitioners is dispensed with before the trial court on condition that within 15 days from the date of receipt of a copy of this order, the petitioners must appear before the trial court and file an undertaking affidavit that they will appear as and when required by the court, the attested photograph must be attached in the affidavit and they must ensure that he is properly represented by an Advocate. Further, considering the oldness of the matter, there shall be a direction to the trial Court to dispose of all the cases simultaneously, within a period of five months from 14/16 https://www.mhc.tn.gov.in/judis the date of receipt of a copy of this order, as directed by the Chief Judicial Magistrate, Sivagangai, in its order, dated 13/05/2014 in Tr.Crl.MP Nos.436 of 2014 and 437 of 2014. Consequently, connected Miscellaneous Petition is closed.
12.09.2022 Internet:Yes/No Index:Yes/No er To, The Judicial Magistrate, Devakottai.
G.ILANGOVAN,J., 15/16 https://www.mhc.tn.gov.in/judis er Crl.O.P.(MD)No.6540 of 2018 12/09/2022 16/16 https://www.mhc.tn.gov.in/judis