Madras High Court
A.Sivakumar vs Inspector Of Police on 3 March, 2021
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.O.P.No.16732 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 30.09.2020
PRONOUNCED ON : 03.03.2021
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.O.P.No.16732 of 2017
and
CRL M.P.No.10275 of 2017
1.A.Sivakumar
Managing Director
VKS Firms Pvt.Ltd.,
R.S.Puram Coimbatore.
2.Ramesh Kannan
General Manager,
VKS Firms Pvt.Ltd.,
3.Vijayalakshmi
Manager of the 1st respondent Company ... Petitioners /
Accused
Vs.
1.Inspector of Police,
District Crime Branch,
Erode District ... Respondent /
Complainant
2.M.Chandrasekar,
Managing Director,
M/s.SKM Animal Feeds &
Foods (India) Pvt.Ltd.,
Nanjai Uthuli Post,
Erode District ... Respondent /
Defacto Complainant
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https://www.mhc.tn.gov.in/judis/
Crl.O.P.No.16732 of 2017
PRAYER: Criminal Original Petition is filed under Section 482 of
the Code of Criminal Procedure, to call for the records of the 1st
respondent and quash the proceedings in Crime No.5/2017, on the
file of the Inspector of Police, District Crime Branch, Erode.
For Petitioners : Mr.A.Ashwinkumar
For Mr.S.Ramachandran
For Respondent-1 : Mr.Prabakaran
Additional Public Prosecutor
For Respondent-2 : Mr.V.Gopinath,
Sr.Counsel
ORDER
This Criminal Original Petition has been filed praying to quash the proceedings in Crime No.5 of 2017, on the file of the Inspector of Police, District Crime Branch, Erode. 2015.
2. The case of the prosecution, in nutshell, is as follows:-
There was business transaction between the 1st petitioner and the 2nd respondent / defacto complainant. Thereafter, in the business transaction, dispute arose between the parties. In order to realise the due, the 2nd respondent / defacto complainant had filed a complaint before the Deputy Commissioner of Police, District Crime Branch, Namakkal. Hence, the above case. Page 2 of 10 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.16732 of 2017
3. The learned counsel appearing for the petitioners would submit that the first petitioner and the defacto complainant had dealings under which certain monies were advanced by VKS Firms from the defacto complainant, for which, the petitioner had transferred and completed the process of transfer of the entire unit and factory with all the machineries to the defacto complainant. The factory was manufacturing and processed chicken, mostly for its exports. While so, in respect of the transactions and purchase for export of eggs, there was certain outstanding dues, which necessitated ultimately the petitioners to file a Suit in O.S.No.199 of 2015, on the file of the District Judge, Coimbatore, against the defacto complainant for recovery of Rs.45,49,864/-, which is pending trial.
4. It is his further submission that with a view to arm twist the petitioner, the defacto complainant filed a complaint on 27.04.2015, before the Deputy Commissioner of Police, District Crime Branch, Namakkal, and after due enquiry, the complaint was closed, as it is the matter of civil in nature. Alleging the same set of allegations, the defacto complaint filed the 2nd complaint before Page 3 of 10 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.16732 of 2017 the Superintendent of Police, Namakkal and subsequently, two more complaints given, which were closed. Thereafter, the defacto complainant, suppressing the four earlier complaints, filed a complaint before the learned Chief Judicial Magistrate, Erode, under Section 156(3) Cr.P.C., which was ordered as prayed for.
5. Contending further, the learned counsel for the petitioners submitted that when a complaint is filed and it is closed by the police, by a detailed order, the remedy open to the complainant is either to file a protest petition or a private complaint. Further, the learned Magistrate failed to looked into the fact that it is a matter of civil nature and no criminality is involved. Moreover, a civil suit is already pending in respect of the very subject matter and therefore, the learned Magistrate could not have exercised the power under Section 156(3) of Cr.P.C., It is further submitted that suppression of vital fact itself will render the complaint not maintainable and liable to be dismissed in limini. Hence, the learned counsel for the petitioner praying to quash the proceedings in Crime No.5 of 2017, on the file of the Inspector of Police, District Crime Branch, Erode. 2015.
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6. The learned Senior Counsel appearing for the 2nd respondent / defacto complainant would submit that the defacto complainant's Company is engaged primarily in manufacture of Animal Feeds and in growing of live birds for use in chicken processing plant as also sale of live birds. The 1 st petitioner's Company was in financial distress and had difficulty in raising working capital. Therefore, the 1st petitioner company approached the defacto complainant, meeting took place with the participation of the promoters and executives of the both the companies, after several rounds of discussion, Minutes of meeting signed by the parties on 10.10.2013. As per the minutes, the bird will be supplied by the defacto complainant Company and processing of the chicken would be done by the 1st Petitioner's Company.
7. It is his further submission that in the meanwhile, the bankers initiated SARFAESI proceedings against the 1st petitioner Company. The 1st Petitioner Company agreed to sell the assets of the Company for a consideration of Rs.25,00,00,000/-, to the defacto complainant Company. After purchase only, it came to knowledge that there were debts in the name of Company, to the Page 5 of 10 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.16732 of 2017 tune of Rs.5,00,00,000/- and Rs.1,20,00,000/- respectively in ICICI Bank and Axis Bank and the first Petitioner / Sivakumar, 2nd Petitioner, who was working as General Manager and the 3rd Petitioner, who was working as Manager, jointly cheated to the tune of Rs.15,35,00,000/-. Hence, the learned defacto complainant strongly opposed to quash the petition.
8. The learned Additional Public Prosecutor appearing for the 1st Respondent State would submit that there was business transaction between the 1st petitioner Company and the 2nd respondent / defacto complainant Company. Thereafter, in the business transaction, dispute arose between the parties. In order to realise the due, the 2nd respondent / defacto complainant had filed the complaint before the learned Chief Judicial Magistrate, Erode, under Section 156(3) Cr.P.C., and based on the order passed by the learned Magistrate, the respondent police registered the case and the investigation is going on. Hence, he prayed for dismissal of the petition.
9. I have heard the learned counsels appearing on either side and perused the materials available on record.
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10. On perusal of the records it is seen that there was business transaction between the 1st petitioner Company and the 2nd respondent / defacto complainant Company. Since the bankers initiated SARFAESI proceedings against the 1st petitioner Company, the 1st Petitioner Company agreed to sell the assets of the Company for a consideration of Rs.25,00,00,000/-, to the defacto complainant Company. MOU was entered into between the 1st Petitioner and the defacto complainant. After purchase, the defacto complainant came to know that there were other debts in the name of Company and according to the defacto complainant, the petitioners are liable to pay the same to the defacto complainant. But the 1st Petitioner Company refused its liability.
11. It is further seen that initially, the defacto complainant made complaint to the respondent police on four occasions and all the complaints were closed advising the defacto complainant Company to seek remedy before the civil forum. This closure was managed by the petitioners, who are highly influential and had nexus with police personnel. Admittedly, no FIR registered and any investigation conducted for earlier complaints, only enquiry Page 7 of 10 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.16732 of 2017 conducted and closed for the inaction of the police in registering a case and conducting investigation as per law. Finally, the 2nd respondent / defacto complainant had filed the complaint before the learned Chief Judicial Magistrate, Erode, under Section 156(3) Cr.P.C., and based on the order passed by the learned Magistrate, the respondent police registered the present case in Crime No.5/2017, on the file of the Inspector of Police, District Crime Branch, Erode. Admittedly, only one FIR registered, crime number assigned and the investigation is yet to progress.
12. The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is, as to whether uncontroverted allegations as made in the complaint to establish the offence. Further, earlier complaints were closed after enquiry and no FIR registered. Crime No.05 of 2017 is the only case registered. The grounds advanced to quash the proceedings in FIR are required to be proved during trial. Hence, the FIR and further proceedings cannot be quashed on the grounds raised by the petitioners.
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13. In the result, this Criminal Original Petition stands dismissed. Since Crime No.5 of 2017 is kept pending without progress, the respondent police to give priority and to complete the investigation within a reasonable time. Consequently, the connected miscellaneous petition is also dismissed.
03.03.2021
Index : Yes/No
Internet : Yes/No
MPK
To
1.Inspector of Police,
District Crime Branch,
Erode District
2.The Public Prosecutor,
High Court, Madras.
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Crl.O.P.No.16732 of 2017
M.NIRMAL KUMAR, J.
MPK
PRE-DELIVERY ORDER IN
Crl.O.P.No.16732 of 2017
03.03.2021
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