Madras High Court
Madhes vs / on 5 April, 2019
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.04.2019
CORAM:
THE HON'BLE MR.JUSTICE A.D.JAGADISH CHANDIRA
Crl.A.No. 641 of 2009
Madhes ... Appellant
/Vs/
1.Moorthy
2.Thangamani
3.Vijayakumar ... Respondents
PRAYER: Criminal Appeal filed under section 378(4) of the Criminal
Procedure Code, to set aside the Judgment dated 13.07.2009, in
C.C.No.571 of 2008 on the file of the Judicial Magistrate, No.5, Salem.
For Appellants : Mr.B.Vasudevan
For Respondents : Mr.Mohd. Nazhrulla for
M/s. K.V.Shanmuganathan
JUDGMENT
This Criminal Appeal arises out of the dismissal of private complaint in C.C.No.571 of 2008 passed by the learned Judicial Magistrate No.5, Salem, dated 13.07.2009, acquitting the respondents/accused for offence under Section 379 IPC.
2.Case of the appellant/complainant is that he was running a silver pattarai at Door No.4/229 at Salem and that the respondents/accused 1 http://www.judis.nic.in 2 to 3 were working under him. On 04.08.2004, the 1st respondent/1st accused had informed the appellant/complainant that the 3rd respondent/3rd accused had taken the keys of the silver pattarai. Due to Mariamman festival, there was continuous holiday for the shop and that on 04.08.2004, the appellant/complainant got back the keys from the 3rd respondent/3rd accused. When he had gone back to the the shop on 08.08.2004, he found that 70 kgs of silver blocks were missing from his shop and the value of the silver was about Rs.7 lakhs. Since the respondents/accused did not come to the shop, having suspicion, the appellant/complainant had gone to their houses and that they were also not found thereby the appellant/complainant filed a complaint before the Kondalampatti Police Station and as directed by the Kondalampatti police, a complaint was written by him and given to them on 14.08.2004. Based on which a case was registered in Crime No.244 of 2004, for offence under Section 379 IPC.
3.Since the investigation was not properly done by the Kondalampatti police, the appellant/complainant had filed a petition before this Hon'ble Court and a direction was issued on 19.04.2005, to complete the investigation and file the final report within a period of one month. Even thereafter, the Kondalampatti Police did not investigated the matter properly and they have referred the case as mistake of fact. Thereafter the appellant/complainant had filed a private complaint before http://www.judis.nic.in 3 the learned Judicial Magistrate No.5, Salem. Based on the sworn statement of the appellant/complainant, the trial Judge took cognizance of the case and summons were issued to the respondents/accused. On appearance of the respondents/accused copies were furnished to them and further evidence was let in on the side of the appellant/complainant.
4.On the side of the prosecution P.Ws.1 to 5 were examined and exhibits Exs.P.1 to 4 were marked.
5.The learned trial Judge after taking all the evidences on the side of the prosecution, having found that no case has been made out against the respondents/accused, which would warrant their conviction despite being unrebutted and finding that the charges to be groundless had discharged the respondents/accused under Section 245 Cr.P.C.,. Against the order of discharge, the present appeal has been filed.
6.Against the order of discharge, the present appeal has been filed.
7.The learned counsel for the appellant/complainant would submit that the order passed by the learned trial Judge is erroneous and he would submit that the trial Judge ought to have accepted the evidences of the appellant/complainant and framed charges against the respondents/accused.
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8.The learned counsel for the respondents/accused would submit that the appellant/complainant examined 4 witnesses on his side and also marked 4 documents. The learned trial Judge finding that no evidence has been let in by the appellant/complainant to prove that he was in possession of silver bars and that the accused have taken them with an intention to cause wrongful loss to him and have wrongful gain to them and further finding that no materials have been produced by the appellant/complainant to prove the case, had discharged the respondents/accused.
9.I have gone through the order passed by the learned trial Judge and the materials available on record.
10.P.W.1-the appellant/complainant has stated in his complaint that he was running a silver pattarai for 9 years and that he used to purchase silver from Anbumani, Rajagopal and Ramesh and that the 1st and 2nd respondents are brothers and that the 3rd respondent was working under him for 7 years. The respondents/accused used to do polishing work of silver jewels and that the appellant/complainant used to pay a weekly salary on every Saturday and that he used to hang the keys of the silver pattarai in his house. On 04.08.2004, the 3 rd respondent had asked for the key stating that he wanted to take photographs in the shop, when the appellant/complainant went to his house for taking lunch. Thereafter, he http://www.judis.nic.in 5 had come back from home and enquired with the 1 st respondent/accused about the keys of the shop and he had informed that the 3rd respondent/accused had taken the keys along with him thereby the appellant/complainant went to the house of the 3rd respondent and taken back the keys from him. Due to Mariamman festival, the shop was closed for 4 days and on 08.08.2004, when the appellant/complainant had gone back to the shop, he found that silver blocks weighing 70 Kgs were missing from his shop, thereafter he searched for the respondents/accused and they were also not available in their respective houses. Thereby he had given a complaint to the Kondalampatti Police Station on 14.08.2004. Since no proper action was taken, he approached the Superintendent of Police and thereafter an enquiry was conducted, during which the respondents/accused had confessed that they had taken the silver blocks and since the Kondalampatti police did not conduct proper investigation, he had approached this Hon'ble High Court and this Court directed the respondent police to file the final report within a period of one month. Even thereafter the police did not conduct enquiry properly and the case was referred as mistake of fact. On 26.10.2004, the respondents/accused attempted to stab and murder the appellant/complainant with knife and once again a complaint was given by him to the Kondalampatti Police Station and no action was taken, whereas a false complaint was given against the appellant/complainant on the same day, as if the appellant/complainant attempted to outrage the http://www.judis.nic.in 6 modesty of the wife of the 2nd respondent/accused. He had further stated that the brother of the 3rd respondent/accused one Shanmugam was working in a Annathanam Patti Police Station and that on 08.12.2004, another case was registered against the appellant/complainant. He would further stated that the facts were known to other witnesses.
11.Ramanathan, P.W.2 has stated that he knows P.W.1 for 10 years and that P.W.1, is the owner of silver pattarai and that the P.W.2 used to go the shop of P.W.1 for making of silver anklets as per the request of P.W.1, and that 10 persons were working under P.W.1. He further stated that P.W.1, used to purchase silver from Anbumani-P.W.4, Rajesh and the respondents/accused are working under him and that on 04.08.2004, he had seen the 3rd respondent/accused taking photos in the silver pattarai. Further, he had heard from P.W.1, that 70 Kgs of silver blocks were found missing from the pattarai and in respect of which they searched for the respondents/accused and the accused persons were not available in their house and thereby a complaint was given to the Kondalampatti Police Station. Since no action was taken, P.W.1 complained to the Superintendent of Police and as per the direction of the Superintendent of Police case was registered. However the police did not take action to arrest the respondents/accused. Thereafter, the case transferred to Omalur Police Station and Sub-Inpsector of Police, Omalur, enquired the case and saying that they are under pressure had refused to take any http://www.judis.nic.in 7 action and that the statements of both the appellant/complainant and respondents/accused were videographed thereafter, the appellant/complainant obtained order from the Hon'ble High Court to complete the investigation and file final report within a period of one month. Thereafter, Kondalampatti police referred the case as mistake of fact. He had further stated that on 26.10.2004 the respondents/accused attempted to murder P.W.1 and again a complaint was given in Kondalampatti Police Station, whereas as a retaliation the respondents/accused had given a false complaint against the appellant/complainant.
12.Balasubramaniam was examined as P.W.3, and he had stated that he was working as a clerk in the silver pattarai of P.W.1 and that P.W.1 was running the business for 10 years and that he was having a silver pattarai and that including the accused 10 persons were working in the silver pattarai. P.W.1 used to purchase silver from P.W.4-Anbumani, Rajagopal and Rajesh and that the receipts for the same were produced. He would also corroborated the evidence of P.W.1.
13.One Anbumani was examined as P.W.4 and he had stated that P.W.1-the appellant/complainant used to purchase silver from him and used to make silver anklets and that during the month of August, P.W.1, the appellant/complainant had taken 30 Kgs of Silver from him for making http://www.judis.nic.in 8 silver anklets and that he had not returned the silver and when he had enquired, P.W.1 informed that the silver blocks were stolen by the respondents/accused. In respect of which a complaint was given to the Kondalampatti Police Station and that he had stated about handing over of 30 Kgs of silver blocks and entering it in the handbook, which is maintained by P.W.2.
14.P.W.5, Asokan, Sub-Inspector of Police, Kondalampatti Police Station was also examined and he had stated that based on the complaint given by P.W.1, a case in Crime No.244 of 2004 was registered for offence under Section 379 IPC and that he had stated that P.W.1 had given a complaint against Kondalampatti Police Station, for not investigating the case properly and thereby the case was transferred to Omalur Police Station(Crime). He has not supported the case of the complainant with regard to the incident which took place in the Omalur Police Station as stated by the P.W.1.
15.After recording the evidence of the above witnesses, the learned Magistrate having found that no material is available to frame charges against the respondents/accused despite being unrebutted and being found the charge to be groundless by recording valid reasons had discharged the respondents/accused under Section 245 Cr.P.C.,. http://www.judis.nic.in 9
16.The learned trial Judge after analyzing the entire evidence of the appellant/complainant having found that the appellant/complainant had not produced any materials to prove that he was in possession of 70 Kgs of silver blocks and finding that the witnesses P.Ws.2 and 3 are the staff of P.W.1, rendered a finding that their statements are not truthful. Further, the trial Court had rendered a finding since because P.W.4 had stated that he had handed over 30 Kgs of silver, during the month of August to P.W.1, it would not be sufficient to frame charges against the respondents/accused and further the trial Court had also rendered a finding that there was no material to prove that the silver blocks were in possession of the appellant/complainant and that no evidence had been let in to prove that the respondents/accused took the silver blocks from his possession in order to obtain wrongful gain, had discharged the respondents/accused under Section 245 Cr.P.C.,
17.I have gone through the order of the trial Judge and perused the materials available on record and taking into consideration the evidence of the witnesses, no materials have been produced to show that the appellant/complainant was in possession of 70 Kgs of silver blocks and further there in no evidence to show that the respondents/accused have taken away the silver blocks from the possession of the appellant/complainant in order to obtain wrongful gain and the trial Judge has rightly discharged the respondents/accused. I do not find any http://www.judis.nic.in 10 infirmity in the order passed by the learned trial Judge and the Criminal Appeal stands dismissed.
05.04.2019 Jer Speaking Order/Non Speaking Order Index : Yes/No Internet : Yes/No To
1.The Judicial Magistrate, No.5, Salem.
2.The Section Officer Criminal Section, High Court of Madras.
http://www.judis.nic.in 11 A.D.JAGADISH CHANDIRA., J, Jer Crl.A.No. 641 of 2009 05.04.2019 http://www.judis.nic.in