Madras High Court
K.K. Nithyavarshan vs State Rep By on 23 January, 2023
Author: T.V.Thamilselvi
Bench: T.V.Thamilselvi
Crl.O.P.No.3102 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.01.2023
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
Crl.O.P.No.3102 of 2021
K.K. NithyaVarshan
... Petitioner/A1
Vs.
State Rep by,
1.The Inspector of Police,
District Crime Branch,
Vellore. ...1st Respondent
2.Sampath
...2nd Respondent/ De-facto Complainant
PRAYER: Criminal Original Petition has been filed under Section 482 of
Cr.P.C praying to call for the record QUASH the FIR dated 27.01.2021 in
Crime No. 1 of 2021 on the file of the 1st Respondent Police and pass such
further or other orders.
For Petitioner : Mr.V.Raghavachari
st
For 1 Respondent : Mr.Leonard Arul Joseph Selvam
Government Advocate (Crl.Side0
For Intervenor : Mr.R.Thamaraiselvan.
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https://www.mhc.tn.gov.in/judis
Crl.O.P.No.3102 of 2021
ORDER
This petition has been filed to call for the records from the first respondent with regard to the Crime No. 1 of 2021 dated 27.01.2021 and to quash the same.
2. The brief facts of the case is that the defacto complainant lodged a complaint before the respondent police stated that he runs show rooms under the name and style of Balamurugan auto point, BM auto enterprises at several places including Vellore, Ranipet. In the year 2018, the defacto complainant entered into an agreement with the Mahindra Company and opened a Tractor show room at Wallajapet and hired 13 members for carry out the work in the said show room. The allegation of the defacto complainant is that the petitioner who was employee of the said show room and along with other employees misappropriated to the tune of Rs. 2,48,93,242/- by quoting higher price than the price fixed by the show room while selling tractors, and by suppressing the sale of spare parts of the tractors and maintaining false records, and by using the amount allocated for office expenditure and showing false accounts, and by not entering the said expenditures, the insurance and regional transportation charges in the 2/10 https://www.mhc.tn.gov.in/judis Crl.O.P.No.3102 of 2021 accounts book of the office, and misappropriating it in the way of violating the company's terms, by falsely claiming regional transportation and registration charges and commission amount, when the defacto complainant asked about the same he was abused by the petitioner. Thereafter the defacto complainant lodged a complaint before the respondent police and they registered FIR under Section 409,420, 477A, 294(b), 506(1) and 120A of IPC in crime No. 1 of 2021.
3. The learned counsel for the petitioner submitted that the defacto complainant lodged two complaints for the same set of allegations one before the Walajapet Police Station, Ranipet, and other before the District Crime Branch, Vellore, which is now registered as Crime No. 1 of 2021. Further, he submitted that the petitioner had been continuously harassed by the Inspector of Police, Walajapet, under the guise of enquiry on the complaint given by the defacto complainant. Thereafter, the petitioner preferred an petition before this Court in Crl.O.P No. 17516 of 2020, for not to harass the petitioner and the same was disposed of by this Court with the direction that the petitioner to appear before the Inspector of Police, Walajapet on 05.01.2021 and to conclude the enquiry as expeditiously as 3/10 https://www.mhc.tn.gov.in/judis Crl.O.P.No.3102 of 2021 possible. Pursuant to the order of this Court, on 05.01.2021, the petitioner appeared before Inspector of Police, Walajapet, but the defacto complainant failed to appear before the said police station, when the police approached the defacto complainant through mobile he informed that he lodged a complaint before the District Crime Branch, Vellore, thereafter the case was closed by the Walajapet Police. Therefore the defacto complainant lodged a complaint for the same set of allegations in different police station which is highly condemnable it is clearly established the intention of the defacto complainant to harass the petitioner which is illegal and against the natural justice. Further, he also submits that the respondent police herein without considering the above facts registered the FIR in crime No. 1 of 2021 against the petitioner and issued notice dated 29.01.2021 under Section 41- A of Cr.P.C summoning the petitioner to appear before the Police on 01.02.2021 at 10.30. a.m., which is contrary to provision of law and FIR should have been registered after issuing 41 A notice. Therefore the two complainants for same set of allegations in different police station is clear abuse of process of law. Hence he prayed to quash the FIR in crime No. 1 of 2021, on the file of the respondent police and he relied the following 4/10 https://www.mhc.tn.gov.in/judis Crl.O.P.No.3102 of 2021 judgements:
i.Babubhai Vs State of Gujarat and Others reported in 2010 12 SCC 254 ii. Amitbhai Anilchandr Shah Vs Central Bureau of Investigation reported in 2013 6 SCC 348.
iii. Vijay Kumar Ghai and Others Vs State of West Bengal and Other reported in 2022 7 SCC 124.
iv.T.T. Antony Vs State of Kerala and others reported in 2001 6 SCC 181.
4. The learned counsel for the intervenor/Defacto complainant submitted that defacto complainant running a show room in the name and style of Balamurugan Auto point, in which the petitioner worked as a General Manager along with the other accused persons when they were misappropriated to the tune of Rs. 2,48,93,242/- by quoting higher price than the price fixed by the show room while selling tractors, and by suppressing the sale of spare parts of the tractors and maintaining false records, and by using he amount allocated for office expenditure and showing false accounts, and by not entering the said expenditures, the insurance and regional transportation charges in the accounts book of the office, and misappropriating it in the way of violating the company's terms, by falsely claiming regional transportation and registration charges and 5/10 https://www.mhc.tn.gov.in/judis Crl.O.P.No.3102 of 2021 commission amount, when the defacto complainant asked about the same he was abused by the petitioner. Hence he filed the complainant before the Walajah Police Station where the show room is existing but there was no progress in the enquiry so he had lodged a complaint before the District Crime Branch, Vellore, and also informed about this matter to the Walajah Police Station that not to pursue the said complaint, based upon the defacto complainant information the Walajapet Police closed the complaint on the ground that the defacto complainant approached the higher authority. Hence he states that the defacto complainant has not given two complaints for the same set of facts in order to harass the petitioner. Further he also pointed out that in order to drag on the proceedings the petitioner filed vexatious application prayed to dismiss the same.
5. Considering both the submissions, it is clear that the petitioner and other accused persons were worked under the defacto complainant who owned the show room under the name and style of Balamurugan Auto point.
According to the defacto complainant he found that the petitioner along with other accused persons were misappropriated to the tune of Rs.2,48,93,242/- by quoting higher price than the price fixed by the show 6/10 https://www.mhc.tn.gov.in/judis Crl.O.P.No.3102 of 2021 room while selling tractors and other modes. Thereafter, the defacto complainant given complaint before Walajapet Police Station, as there was no progress in the enquiry then the defacto complainant lodged a complaint before District Crime Branch, Vellore. In the meanwhile, the petitioner approached this Court praying to direct the Inspector of Police, Walajapet, to not to harass the petitioner under the guise of enquiry and this Court also directed the petitioner and the defacto complainant to appear before the Inspector of Police, Walajapet on 05.01.2021 and to conclude the enquiry as expeditiously as possible. In pursuant to the order of this Court the petitioner appeared before the Walajapet Police station, but the defacto complainant not appeared before the said police station while the police contacted him through cell phone he informed that as he lodged a complaint before the District Crime Branch( for sake of convenience ''DCB''), Vellore, advised to worked out his remedy before the same, and stated that not to pursue his complainant, based on the defacto complainant's information the complaint was closed on 28.01.2021 which are clearly reveals from the closure report dated 28.01.2021. Hence the facts clearly reveals that initially the defacto complainant given a complaint before the Walajapet Police 7/10 https://www.mhc.tn.gov.in/judis Crl.O.P.No.3102 of 2021 station which was also closed at his request that he has approached the higher forum (DCB, Vellore) where they found prime facie and registered an FIR on 27.01.2021 in Crime No. 1 of 2021 under sections 409,420, 477- A, 120-B, 294(b) and 506(i) of IPC. As discussed above, there is no need to quash the FIR since because the defacto complainant's earlier complaint before the Walajapet Police station was closed. Further the above referred Judgements by the petitioner's counsel is not applicable to the facts of the present case. Therefore, the FIR registered by the first respondent is maintainable in law and there is no abuse of process of law as alleged by the petitioner. Accordingly this Criminal Original Petition is dismissed as no merits.
6. Further, the Inspector of Police, District Crime Branch, Vellore is directed to complete the investigation within three months from the date of receipt of a copy of this order.
23.01.2023 pbl 8/10 https://www.mhc.tn.gov.in/judis Crl.O.P.No.3102 of 2021 To
1.The Inspector of Police, District Crime Branch, Vellore.
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pbl Crl.O.P.No.3102 of 2021 23.01.2023 10/10 https://www.mhc.tn.gov.in/judis