Madras High Court
Muppala Aruna vs Nithiyaa ... 1St on 31 January, 2025
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.R.C.Nos.1226 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 04.10.2024
PRONOUNCED ON : 31.01.2025
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.R.C.Nos.1226 of 2024
and
CRLM.P.No.10493 of 2024
1.Muppala Aruna
2.Sai Akhil Varma Muppala
3.Nagaraju Sagiraju
4.Somal Raju Bharath Kumar ... Petitioners / Proposed Accused
Vs.
1.Nithiyaa ... 1st Respondent / Complainant
2.The State, Rep.by ... 2nd Respondent / Respondent
Inspector of Police,
Forgery Team – 27,
Vepery, Chennai-7
Criminal Revision Petition filed under Section 442 of BNSS, 2023,
against the order dated 06.07.2024 made in Crl.M.P.No12947 of 2024,
passed by Court of Metropolitan Magistrate For Exclusive Trial of CCB
(Relating to Cheating Cases in Chennai) and CBCID Metro Cases,
Egmore, Chennai-08.
Page No.1 of 29
https://www.mhc.tn.gov.in/judis
Crl.R.C.Nos.1226 of 2024
For Petitioners : Mr.R.Rajarathinam
Senior Counsel
For Mr.P.Sathyanathan
For Respondent-1 : Mr.S.Saravanan
For Mr.A.Arumugam
For R-2 : Mr.A.Damodaran
Additional Public Prosecutor
ORDER
The Criminal Revision Case is filed against the order dated 06.07.2024 in Crl.M.P.No12947 of 2024, passed by the learned Metropolitan Magistrate For Exclusive Trial of CCB (Relating to Cheating Cases in Chennai) and CBCID Metro Cases, Egmore, Chennai-08.
2. Mr.R.Rajarathinam, the learned Senior Counsel appearing for the Petitioners would submit that M/s.KESM India LLP is a registered partnership Firm, which was started based on the Limited Liability Partnership Agreement (LLP), dated 28.05.2019 with (I) Muppala Janardhana; (2)Sagiraju Nagaraju; (3)Bharath Kumar Somalraju; (4) Nithiyaa Saravanan; (5) Muppala Sai Akhil Varma. The said Muppala Janardhana was retired and Muppala Aruna was inducted and accordingly, by Supplemental Areement, dated 09.10.2020, the partners and shareholding pattern have been changed as follows:- Page No.2 of 29
https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1226 of 2024 Name of the Partner Working Capital Shareholding Contribution in (Rs.) in % Muppala Aruna 3,77,42,500 25.16 Muppala Sai Akhil Varma 1,63,17,500 10.86 Bharathkumar Somalraju 4,10,77,500 27.39 Nagaraju Sairaju 5,47,62,500 36.61 Nithyaa Saravanan 1,00,000 0.07 15,00,00,000
3. The learned Senior Counsel further submitted that from the said share-holding pattern, the said Nithyaa Saravanan was added as partner, as her husband was working as freelancer-cum-employee in KESM India LLP. The LLP over the period sustained huge loss around Rs.14 Crores. Hence, in order to over-come the situation, the LLP decided to avail credit facilities. The Resolution was passed on 02.08.2021 unanimously by all the partners, in respect of availing of credit facilities from Karnataka Bank, Kodambakkam and Penukonda, authorising Muppaala Sai Akhil Varama and Bharath Kumar Somalraju, jointly to execute/sign all such deeds, documents, indemnities and other writings, which are necessary and also to hypothecate, mortgage the assets of LLP, avail credit facilities, it shall bind the LLP and all its partners. Subsequent to that, they availed loan and executed the documents on behalf of the LLP. Page No.3 of 29 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1226 of 2024
4. The learned Senior Counsel further submitted that subsequently, it came to the knowledge of LLP, the complainant - Nithyaa Saravanan engaged in the conflicting business and hence, as per clause 26 of LLP Agreement, dated 28.05.2019, a show-cause Notice, dated 05.09.2023, issued to her, seeking explanation. The Board Meeting was held on 13.09.2023 and Nithyaa Saravanan did not attend the meeting deliberately. Considering her reply letter, the Board decided to expel her from the LLP, through the Resolution, dated 13.09.2023. The same was communicated to her and duly recorded with the Registrar of Companies on 10.10.2023, vide LLP Forms III and IV. Accordingly, the LLP was reconstituted on 13.09.2023 with effect from 16.09.2023. In the month of March 2023, the authorised and major share-holding partners of LLP viz. Muppala Sai Akhil Varma and Bharathkumar Somalraju applied for loan with HDFC Bank, MSC Branch, Hyderabad, by mortgaging the properties of the designated partners in order to close the liability of LLP to Karnataka Bank. The loan sanction was made in the month of August, 2023. No document was submitted to the HDFC Bank, Hyderabad, with the signature of Nithyaa Saravanan, who is not at all connected with the loan transaction of LLP with HDFC Bank. Nithyaa Saravanan was ceased to be partner of LLP with effect from 13.09.2023. Neither the continuing Page No.4 of 29 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1226 of 2024 to be partner of LLP with effect from 13.09.2023. Neither the continuing partners nor the previous partners have forged the signature of Nithyaa Saravanan at any point of time.
5. The learned counsel further submitted that due to personal enmity, the complainant made a complaint before the respondent police, alleging that the petitioners forged her signature in the bank loan documents and availed the loan. Pursuant to the complaint, the petitioners herein received summons from the respondent police. The petitioners and complainant attended the enquiry in person. The petitioners submitted their Explanations, dated 07.12.2023, and relevant documents. The respondent police found that the complainant's signature was not forged in any of the loan document and that, the loan was availed by Barath Kumar Somalraju and Muppala Sai Akhil Varma by making their signatures. After considering the explanation and documents submitted, the respondent police found that no offence committed and closed the complaint of the complainant on 07.02.2024.
6. The learned Senior counsel further submitted that when the matter stood thus, the complainant filed Crl.M.P.No.12947 of 2024 under Section 156(3) of Cr.P.C. before the Metropolitan Magistrate for Exclusive Page No.5 of 29 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1226 of 2024 Metro Cases, Egmore, Chennai, seeking for a direction to the respondent police to register the FIR, as against the petitioners. The complainant has also misled the learned Magistrate by providing different version of the covenants of the LLP Agreement. The learned Magistrate without looking into the complaint in proper perspective, allowed in Crl.M.P.No.12947 of 2024 by order dated 06.07.2024, directing the Deputy Commissioner of Police, to depute the Inspector of Police to enquire the matter and register an F.I.R. On the basis of the complaint dated 05.10.2023 within 15 days from the date of receipt of that order and investigate into the matter and file Report within a period of 3 months.
7. The learned Senior Counsel would submit that in the present case, the cause of action and jurisdiction will not come under the respondent police or even within the State of Tamil Nadu. As per the version of the complainant, her signature was forged with the HDFC Bank, Hyderabad and hence, the SOC is at Hyderabad. Consequently, the complainant ought to approach the law enforcing authority at Hyderabad and not with the respondent police. According to the complainant, "as per Clause 37 (2) of LLP Agreement, no partner has the right to borrow money for the partnership business without the consent of the other partners. M/S. KESM India LLP is running profitably. M/s. KESM India Page No.6 of 29 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1226 of 2024 partners. M/S. KESM India LLP is running profitably. M/s. KESM India LLP agreement provided that each partner would be liable for their respective debts and that no partner could take loan for M/s. KESM India LLP without consent of other partners". But, in reality, Clause 37 (2) of the LLP Agreement states that, “Lend money or give on behalf of the KESM India LLP or to have any dealings with any persons, company or firm whom the other partner previously in writing have forbidden it to trust or deal with. Any loss incurred through any breach of provisions shall be made good with the KESM India LLP by the partner incurring the same.”
8. The learned Senior Counsel further submitted that in this case, there is no forgery of loan document with the HDFC Bank, Hyderabad, at all. Because, the loan application with HDFC is signed at executed by Barath Kumar Somalraju and Muppala Sai Akhil Varma alone and not the signature of the complainant. Consequently, the alleged forgery, as claimed by the complainant would not arise at all. All the partners of KESM India LLP applied loan to the tune of Rs.15 Crores, with Karnataka Bank, Kodambakkam Branch, Chennai. At the time of applying the said loan, the complainant and other partners signed the loan papers. The Karnataka Bank sanctioned the loan vide sanction letter dated Page No.7 of 29 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1226 of 2024 loan was acknowledged on 14.01.2020. The complainant was subsequently terminated from the partnership with effect from 13.09.2023. Further, her termination was duly notified to the ROC, Chennai, on 10.10.2023, vide LLP Form III and IV. Subsequently, KESM India LLP applied a loan with HDFC Bank and the authorised signatories Barath Kumar Somalraju and Muppala Sai Akhil Varma only signed in the loan papers. The loan of Rs.34,63,77,053/- was sanctioned by the HDFC Bank, Hyderabad, to KESM India LLP on 21.06.2023. Out of Rs.34,63,77,053/-, a sum of Rs.20,34,64,641/- was directly transferred to the loan account maintained with the Karnataka Bank. Thus, the entire loan amount and interest, etc., was settled to Karnataka Bank and the loan account with Karnataka Bank was closed. Hence, the complainant was already freed from the liability to the loan account of Karnataka Bank. At the same time, the complainant was not a signatory in the loan account of HDFC Bank, Hyderabad. Hence, there can be no question of forgery. By twisting this events, the complainant falsely made a complaint that her signature was forged in the loan availed with HDFC Bank. Despite knowing the fact clearly, with an intention of extorting money from the petitioners herein, she made the false complaint. Page No.8 of 29 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1226 of 2024
9. The learned Senior Counsel, in support of his contention, has relied on the Judgment of the Hon'ble Supreme Court in Priyanka Srivastava and another Vs. State of Uttar Pradesh and others, reported in (2015) 6 SCC 287, wherein it has been held that the remedy available under Section 156(3) Cr.P.C. is not of routine nature. Exercise of power thereunder requires application of judicial mind. The learned Magistrate exercising said power must remain vigilant with regard to nature of allegations made in the application and not to issue directions without proper application of mind. In an appropriate case, learned Magistrate can verify the truth and veracity of allegations made, having regard to nature thereof and the power under Section 156(3) of Cr.P.C., cannot be invoked by a litigant at his/her own whim to harass others.” Further, the learned Senior Counsel relied on the Judgment of the Apex Court in Babu Venkatesh and Others vs. State of Karnataka and Another reported in (2002) 5 SCC 639; and the Judgment of Apex Court in Santhakumari & Ors Vs. State of Tamil Nadu & Anr reported in 2023 LiveLaw (SC) 465. Further, the learned counsel relied on the decision of Bombay High Court (Aurangabad Bench) in Avinash and Ors.
vs. The State of Maharashtra and Ors reported in Page No.9 of 29 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1226 of 2024 Court in Arun P.Gidh Vs. Chandraprakash Singh and Others reported in 2024 (2) MWN (Cr.) 177 (FB)(Bom.).
10. Mr.S.Saravanan, the learned counsel appearing for the 1st Respondent / Defacto Complainant would submit that the complainant is an active partner in M/s.KESM India LLP, holding a 10% of shares of Profit and loss. The accused partners have falsely shown my shareholding percentage as 0.07% based on the working capital contribution, instead of the actual 10% share in profits and losses. This misrepresentation was done to diminish the complainant's financial stake and involvement in the LLP. According to the official Government records. However, the accused partners have inaccurately represented complainant's shareholding as 0.07%, which deviates significantly from the official record. This misrepresentation is a serious issue, as it undermines the integrity of the official records and potentially affects complainant's legal standing and financial rights within the LLP. GST registration certificate for M/s. KESM India LLP clearly shows complainant's name as one of the partners. This official document confirms the complainant's role and stake in the LLP, as recognized by the GST Authorities. It is indicative of complainant's recognized status as a partner and underscores that any fraudulent transactions executed by the accused partners, including the loan secured Page No.10 of 29 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1226 of 2024 transactions executed by the accused partners, including the loan secured from HDFC Bank, have done without complainant's consent and in violation of the partnership rights.
11. The learned counsel further submitted that the other partners, without the consent of complainant, colluded to fraudulently obtain the loan from HDFC Bank to the tune of Rs.34,63,77,053/- by misusing her signature. Complainant shown as both a borrower and a guarantor in the fraudulent loan account. This unauthorized use of her identity to secure a loan of Rs.34,63,77,053/-from HDFC Bank is a serious offence. Clause 37 of the LLP Agreement explicitly states: (1) "Employ any money, goods or effects of KESM India LLP or pledge the credit thereof except in the ordinary course of business and upon the account or for the benefit of KESM India LLP." and (2). "No partner shall, without the written consent of all partners of KESM India LLP, lend money or give credit on behalf of KESM India LLP or to have any dealing with any persons, company, or firm whom the other partner previously in writing have forbidden it to trust or deal with. Any loss incurred through any breach of provisions shall be made good with the KESM India LLP by the partner incurring the same."
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12. It is further submitted that the accused partners acted in clear violation of Clause 37 by securing substantial loan from HDFC Bank without obtaining the necessary written consent from all partners. The accused partners, by fraudulently obtaining the loan from HDFC Bank using the complainant's signature, violated this provision. The loan was secured without her written consent and involved dealings that were prohibited under the LLP Agreement. Further, on 15.07.2023, she received an email from Karnataka Bank, Kodambakkam Branch, informing her about a cheque (No.410260/HDFC/DD) for Rs.20,34,16,641/-received for collection to the loan account of M/s. KESM India LLP. Subsequently, she received an SMS from NeSL-IU (National E- Governance Services Ltd - Information Utility) indicating that a document had been submitted to NeSL-IU, and the complainant was listed as one of the signatories for the debt (Ref No/Sanction No/Doc Ref No. 88047069). Upon verification with the Bank, it is found that the other partners applied for a loan with HDFC Bank Ltd for Rs.34,63,77,053/- by forging her signature. This loan was sanctioned on 21.06.2023. HDFC Bank released Rs.20,34,16,641.00 as the first installment of the loan on 15.07.2023. As per NeSL-IU Reference No.88047069, HDFC Bank sanctioned a total loan amount of Rs.34,63,77,053/- to KESM India LLP Page No.12 of 29 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1226 of 2024 sanctioned a total loan amount of Rs.34,63,77,053/- to KESM India LLP and the complainant shown as one of the guarantors for the loan amount. Neither the complainant nor her authorized representative signed any loan documents. The inclusion of her name as a guarantor was done fraudulently. Despite repeated requests by the complainant, the HDFC Bank officials failed to provide the requested information and the delay in addressing her grievance indicate possible collusion with the accused partners.
13. The learned counsel further submitted that the accused have no right to challenge the Magistrate's order directing registration of an FIR because the order is made to ensure that the police investigate a cognizable offence, and this decision is made based on the complaint and evidence presented to the Learned Magistrate. The Magistrate's decision to direct the registration of an FIR is a judicial function and is not subject to interference by the accused at this preliminary stage. The Hon'ble Supreme Court in the case of Sakirivasu v. State of Uttar Pradesh, reported in (2008) 2 SCC 409 has held that the power of Magistrate to order registration of a case under Section 156(3) is not an administrative power, but is a judicial power, and the Magistrate can order the police to register the FIR and also to make proper investigation. Challenges to the Page No.13 of 29 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1226 of 2024 information forming the basis of the FIR can be examined during the investigation or trial, not before the FIR is registered. The direction was issued to ensure that the serious allegations of fraud are properly investigated. The registration of an FIR is a procedural step that facilitates the investigation of cognizable offences, particularly, when there are allegations of significant financial fraud.
14. The learned counsel further submitted that the present Criminal Revision Petition challenging the order lacks merit and seeks to interfere with a procedural decision that is crucial for ensuring justice. The challenge by the accused partners is premature and not supported by the legal precedents which affirm that the registration of an FIR should not be interfered with at this stage. Since the settlement of the Karnataka Bank was done in Kodambakkam Branch, Chennai. A loan was processed through HDFC Bank and considering the fraudulent nature of these transactions, the cause of action for the crime arises in Chennai. The location of the financial transactions and the settlement process signifies the nexus of the crime to Chennai, reinforcing the jurisdiction of the Magistrate's direction for FIR registration. Therefore, the Magistrate's direction to register the FIR in Chennai is justified and appropriate. Approaching the law enforcement authorities in Hyderabad is not Page No.14 of 29 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1226 of 2024 Approaching the law enforcement authorities in Hyderabad is not applicable to this case. The learned counsel further submitted that the loan amount obtained fraudulently from HDFC Bank was intended for KESM India LLP. However, it is suspected that the funds have misappropriated by the accused partners for their individual businesses, where they hold Directorial positions. This misuse deviates from the intended purpose of the loan.
15. The learned counsel also submitted that the complainant raised query with Equifax and CIBIL and it confirm that the complainant associated with the loan. Both agencies state that consent was taken from the complainant by HDFC Bank for the loan enquiry. Neither Equifax nor CIBIL able to provide documentation proving that consent was obtained from her. HDFC Bank, involved in the forgery, has been denying the provision of proof of consent, further complicating the situation and raising concerns about the validity of the consent process. The actions of the accused partners clearly demonstrate collusion and fraudulent conduct. They have fraudulently utilized the complainant's signature to secure a loan from HDFC Bank, implicating serious criminal offences under Section 420, 468, 471 and 120B of IPC. The collusion among the accused partners to execute the fraudulent loan transaction indicates a Page No.15 of 29 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1226 of 2024 defraud, which is covered under the sections as stated above. Given the gravity of these offenses, and after reviewing the records and documents presented, the Learned Magistrate found a prima facie case that warrants a thorough investigation. The accused cannot evade the legal process based on procedural Challenges or claims of jurisdiction. The registration of FIR is a standard legal measure to address the alleged criminal conduct. The legal process must take its course to address criminal offenses, regardless of the accused's attempts to escape accountability. The learned counsel further submitted that the order of the learned Magistrate's is in accordance with legal standards and procedures. Section 156(3) Cr.PC., allows a Magistrate to direct the police to register an FIR., if the allegations are serious and warrant investigation. There is no legal defect or irregularity in the order passed by the learned Magistrate. The order was made based on the prima facie evidence and the legal requirements for directing an investigation. The learned counsel, in support of his contention, has relied on the Judgment of Hon'ble Apex Court in Devarapalli Lakshminarayana Reddy and Others Vs. V.Narayana Reddy and Others reported in (1976) 3 SCC
252. Further, the learned counsel relied on the decision of this Court in A.Ramamurthy Vs. The Assistant Commissioner of Police, Tambaram Range and Ors reported in MANU/TN/9105/2021; and the Page No.16 of 29 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1226 of 2024 Tambaram Range and Ors reported in MANU/TN/9105/2021; and the Judgment of Full Bench of Allahabad High Court in Father Thomas Vs. State of U.P. And Anr reported in 2011 Cri.LJ.2278.
16. Mr.A.Damodaran, the learned Additional Public Prosecutor appearing for the State would submit that during the investigation, it reveals that an unregistered Agreement has been prepared in the name of M/s.KESM India LLP, on 28.05.2019, along with the complainant and other shareholders. On 18.12.2019, the complainant and the petitioners taken a loan from Karnataka Bank, Kodambakkam Branch, with a consensus. Subsequently, the Petitioners Barath Kumar Somalraju and Muppala Sai Akhil Varma applied for a loan from HDFC Bank Bellandur Branch, Hydrabad with the intention of improving the Company and Rs.34,63,77,053/- was sanctioned as loan amount and on 15.07.2023 the first installment of Rs.20,34,16,641/- received, only the petitioners signed the documents submitted to the Bank. The investigation revealed that no signature of the complainant was found in the said loan application form. The collusion among the accused partners to execute the fraudulent loan transaction indicates a criminal conspiracy. The partners acted in concert with the intent to defraud. The learned Additional Public Prosecutor, in support of his contentions, has relied on the Judgment of the Hon'ble Apex Page No.17 of 29 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1226 of 2024 in (2013) 6 SCC 384; ; and the Judgment of Full Bench of Allahabad High Court in Father Thomas Vs. State of U.P. And Anr reported in 2011 Cri.LJ.2278, wherein it has been held that “the entire scheme of the Code unambiguously supports the theory of exclusion of Audi alteram partem pre-registration of an FIR.” Further the scheme of the Criminal Procedure Procedure does not provide for any right of hearing at the time of registration of the First Information Report. Further, he referred to the Judgment of the Apex Court in the case of Union of India Vs. W.N.Chadha reported in 1993 SCC (Cri) 1171 wherein it has been held that prior notice and giving an opportunity of hearing to an accused in every criminal case before taking any action against him would frustrate the proceedings, obstruct the taking of prompt action as law demands, defeat the ends of justice and make provisions of law relating to the investigation lifeless. Further, submitted that on the above principles that the Scheme of Code it is clear that Sections 154 and 156(3) of the Code, the law does not contemplate grant of any personal hearing to a suspect who attains the status of an accused only when the case is registered for committing the particular offence or the report under Section 173 of the Code is filed terming the suspect an accused that his rights are affected in terms of the Code. Further, the learned counsel referring to the Full Bench Judgment of the Allahabad High Court in Page No.18 of 29 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1226 of 2024 referring to the Full Bench Judgment of the Allahabad High Court in Father Thomas's case (cited suspra) submitted that the order of Magistrate made in exercise of power under Section 156(3) Cr.P.C., directing the Police to register and investigate is not open to revision.
17. I have heard the learned counsel appearing on either side and perused the materials available on record.
18.Now, the issue is that whether this Revision Petition can be entertained challenging the order passed under Section 156(3) Cr.P.C. The Apex Court in the case of Suresh Kankra Vs. State of U.P. and another reported in 2022 LiveLaw SC 35 held that the Judicial Magistrate is required to be conscious of the consequences while passing an order under Section 156(3) Cr.P.C., it being a judicial order, relevant materials are expected to be taken note of all the relevant facts and quashed the proceedings initiated under Section 156(3) Cr.P.C., wherein it has considered that an order passed under Section 156(3) Cr.P.C., is a judicial order. Once it is a judicial order, the same is amenable to Revision. Further, the Apex Court in the case of Krishnan and another Vs. Krishnaveni and another reported in 1997 (4) SCC 241 held that the revisionary power has given to the Court is to examine the record of Page No.19 of 29 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1226 of 2024 his local jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence, or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court and therefore provides remedy through Revision. Further under Section 401(1) Cr.P.C.,/442 BNSS High Court has power of revision and the said section provides that in case of any proceeding, the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court exercise its discretion powers. Further, the High Court has been vested with suo motu powers to excise revision power in addition to Section 482 Cr.P.C.,/528 BNSS saves inherent powers of the High Court. Further in the said Judgment, referring to Judgment of Madhu Limaye v. State of Maharashtra reported in (1997) 4 SCC 551, considered the scope of power of High Court under Section 482 and 397(2) of the Code. On a harmonious consideration of said two provisions held that the High Court has no power of Revision in interlocutory order still the inherent power will come into play when there is no provision for redressing the grievance of aggrieved party. Thus, the objection of the Additional Public Prosecutor on maintainability of the Revision Petition, the power of High Court to entertain the Revision was not taken away under Section 397 or inherent power under Section 482. Page No.20 of 29 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1226 of 2024
19. Further, it is seen that in the case of Santhakumari Vs. State of Tamil Nadu reported in 2023 LiveLaw SC 465, the Apex Court had set aside the order passed by this Court in Crl.R.C.No.1456 of 2022. The case is that the complainant filed a petition under Section 156(3) Cr.P.C., before the Magistrate Court and the Magistrate dismissed the the said petition, against which a Revision filed. The High Court set aside the order of Magistrate and directed the FIR to be registered as per Section 156(3) Cr.P.C., The aggrieved accused person moved the Apex Court, the Apex Court set aside the order of this Court finding that no notice has been served to the prospective / proposed accused. The same analogy, on the converse, is applicable to the facts of the above case, especially, when the proposed accused approached this Court. Further, in the Judgment in Divine Retreat Centre Vs. State of Kerala and Ors reported in 2008 3 SCC 542 the Apex Court held that no judicial order can ever be passed by any court without providing a reasonable opportunity of being heard to the person likely to be affected by such order and particularly when such order results in drastic consequences of affecting one's own reputation.
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20. Further, the Apex Court in the case of V.C.Shukla Vs. State Through CBI reported in 1980 AIR 962 held that Sub-section 3 of Section 397 does not limit the inherent power of High Court contained in Section 482. Thus, in case of miscarriage of justice to reach the ends of justice this Court can very well entertain the above Revision. Thus this Court decides the Revision is maintainable.
21. On the factual aspect it is seen that the 1st respondent lodged a complaint to the Commissioner of Police on 05.10.2023. Since no action has been taken, she filed Crl.M.P.No12947/2024 under Section 156(3) Cr.P.C., and the trial Court, by order dated 06.07.2024 directed the 1st respondent Police to enquire the matter and register an FIR, on the basis of the complaint dated 05.10.2023. On perusal of the complaint it is seen that M/s.KESM India LLP is a registered partnership Firm, which was started based on the Limited Liability Partnership (LLP), dated 28.05.2019 with the petitioners and the 1st respondent as partners and the partnership has been registered with the Registrar of Companies. During the course of business, all partners applied a loan to the tune of Rs.15,00,00,000/- from Karnataka Bank, Kodambakkam Branch, Chennai and they appeared before the Bank Manager, executed the documents, Page No.22 of 29 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1226 of 2024 and they appeared before the Bank Manager, executed the documents, loan sanctioned vide sanction letter dated 18.12.2019 and the said sanctioned loan was acknowledged on 14.01.2020. Out of the sanctioned amount, Rs.13,50,00,000/- were used. This being so, to the shock and surprise of the first respondent, she received a mail on 15.07.2023 from Karnataka Bank, Kodambakkam Branch that the Branch received a cheque for Rs.20,34,16,641/- and subsequently an SMS was received from NeSL-IU (National E- Governance Services Ltd - Information Utility) informing that a document has been submitted showing the 1st respondent as signatories for sanction of loan. When the 1st respondent verified with the bank, she came to know that the other partners viz., petitioners herein applied loan with HDFC Bank for a sum of Rs.34,63,77,053/- by forging her signature and the loan was sanctioned on 21.06.2023. Further she came to know that the HDFC Bank released a sum of Rs.20,34,16,641/- as the first installment of the loan on 15.07.2023 and the loan has been closed with Karnataka Bank. The 1st respondent having not signed any documents in HDFC Bank made on enquiry came to know that the partners / petitioners herein, have forged the 1st respondent's signature and obtained the loan. Further, from the loan obtained, the petitioners have been diverting the amount for their own business establishment. Hence, the petitioners for wrongful purpose with Page No.23 of 29 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1226 of 2024 1st respondent signature in loan documents and the Bank Authorities also not properly verified all the documents and sanctioned the loan. Hence, lodged the complaint. Prior to it, she sought documents from the Bank, but the same was not made available, left with no other option, she lodged the complaint against the petitioners. The gravement of the complaint is that the the petitioners had forged the signature of the first respondent and using the same and by committing such forgery had obtained loan from HDFC Bank and they have repaid the Karnataka Bank loan amount and the balance amount diverted not used for the purpose for which the loan was obtained.
22. In this case, it is seen that the first respondent is no more a partner with M/s.KESM India LLP. A show-cause notice was issued to the 1st respondent on 05.09.2023 stating that the 1st respondent has partner in a Chennai based Firm viz., NSTG India Pvt.Ltd. She has been conducting business in conflict with the business of the KESM India LLP. Further, the 1st respondent's husband Saravanan withheld the information from all partners. The 1st respondent have used the resources of the petitioners' Firm to acquire clients and business, which is against the Clause-17 of the Business Agreement. Further, as per Clause-20 of the Agreement, partners can carry on their own, separate and independent Page No.24 of 29 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1226 of 2024 Agreement, partners can carry on their own, separate and independent business, provided, the said partner has to intimate the said fact to KESM India LLP before the start of independent business. The Firm has sustained loss and thereafter finding that the 1st respondent is acting against the interest of the Company, which is conflict with the business of the Firm and an unanimous decision has been taken by the other partners to expel her from the partnership Firm. Notice has been served, and thereafter, by Resolution dated 13.09.2023, the 1 st respondent has been expelled as designated partner from the Firm and thereafter, the Firm reconstituted, her name deleted from the partnership Firm and the same has been filed before the Registrar of Companies on 10.10.2023, since the procedure, takes some time for recording expelling the 1st respondent and thereafter reconstitution and intimating the same to the RoC, and others. The 1st respondent could have received some notification alerts, that alone will not constitute any offence.
23. In the meanwhile, to tide over the business, the petitioners/partners applied for a loan with the HDFC Bank on 22.06.2023. From the loan application it is seen that the 1st respondent not projected as partner and the loan obtained in the name of Firm, signed by the 1st petitioner and the 4th petitioner, in the loan documents, Page No.25 of 29 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1226 of 2024 HDFC Bank, on 11.07.2023, sanctioned the loan. The earlier loan taken from the Karnataka Bank, Kodambakkam Branch, in which the 1st respondent signed as one of the partner and guarantor, was settled and the loan was cleared, the 1st respondent has been discharged from any liability of KESM India LLP. Due to the conflict of interest and acting against the partnership Firm the 1st respondent has been expelled.
24. On perusal of the Bank documents and Board Resolution would confirm that in none of the documents submitted to HDFC Bank, neither the 1st respondent shown as partner nor her signature forged. There is some dispute in the partnership between the petitioners and the 1 st respondent for which filing of criminal case is not the answer. There are other ways to address her grievance. From the Complaint, dated 05.10.2023 it is seen that it revolves around the forgery which is said to have committed with HDFC Bank. On the above facts it is seen that there is nothing projected or represented using the name of the 1 st respondent with HDFC Bank. Hence, there is no cheating or forgery committed in this case. These facts not been considered and the trial Court passed orders referring to the complaint as though signatures of the 1 st respondent have been forged. Thus, a commercial dispute between the partners has been attempted to give a criminal colour and that too, on a Page No.26 of 29 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1226 of 2024 partners has been attempted to give a criminal colour and that too, on a premise that 1st respondent's signatures forged and using forged signature documents executed, loan obtained by the petitioners from HDFC Bank, on the documents submitted it is seen the allegations made in the complaint by the 1st respondent is without substance.
25. In view of the forgoing reasons, the Criminal Revision Case is allowed and the order dated 06.07.2024, passed in Crl.M.P.No12947 of 2024, by the learned Metropolitan Magistrate for Exclusive Trial of CCB (Relating to Cheating Cases in Chennai) and CBCID Metro Cases, Egmore, Chennai, is hereby set aside. Consequently, the connected miscellaneous petition is closed.
31.01.2025 Index : Yes/No Speaking Order/Non Speaking Order Neutral Citation: Yes/No vv2/mpk Page No.27 of 29 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1226 of 2024 To
1.The Metropolitan Magistrate For Exclusive Trial of CCB (Relating to Cheating Cases in Chennai) and CBCID Metro Cases, Egmore, Chennai-08.
2.The Inspector of Police, Forgery Team – 27, Vepery, Chennai- 600 007
3. The Public Prosecutor, High Court, Chennai.
Page No.28 of 29 https://www.mhc.tn.gov.in/judis Crl.R.C.Nos.1226 of 2024 M.NIRMAL KUMAR, J.
vv2 Pre-Delivery Order made in Crl.R.C.Nos.1226 of 2024 31.01.2025 Page No.29 of 29 https://www.mhc.tn.gov.in/judis