Madras High Court
Jitesh Kumar vs / on 20 January, 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.01.2017 CORAM THE HONOURABLE MR.JUSTICE G.CHOKALINGAM Crl.R.C.Nos.1227 of 2015 & Crl.M.P.No.270, 651 of 2016 Crl.R.C.Nos.142,143, 144, 145, 146 and 147 of 2016 and Crl.M.P.Nos.941 to 945 of 2016 1.Jitesh Kumar 2.Rajkumari ..Petitioners in Crl.R.C.No.1227 of 2015 Shrenic Kumar .. Petitioner in Crl.R.C.No.142 of 2016 D.Sureshkumar .. Petitioner in Crl.R.C.No.143 of 2016 Naveen Kumar Kochar .. Petitioner in Crl.R.C.No.144 of 2016 1.Ramesh Kumar Kochar 2.Anitha 3.Sarala .. Petitioners in Crl.R.C.No.145 of 2016 Inderchand D.Kochar .. Petitioner in Crl.R.C.No.146 of 2016 N.Dhanraj Kochar .. Petitioner in Crl.R.C.No.147 of 2016 /vs/ 1.The Inspector of Police, J-9, Thuraipakkam Police Station, Kancheepuram District. 2.Ramesh Kumar Kochar 3.Anitha 4.Sarala (R1 to R4 given up) 5.Sathak Ahmed Shaw 6.Ramesh Veeraghavan .. Respondents in Crl.R.C.No.1227 of 2015 The Inspector of Police, J-9, Thuraipakkam Police Station, Kancheepuram District. .. Respondent in Crl.R.C.Nos.142, 143 and 144, 146 & 147 of 2016 1.The Inspector of Police, J-9, Thuraipakkam Police Station, Kancheepuram District. 2.Jitesh Kumar 3.Rajkumari .. Respondents in Crl.R.C.No.145 of 2016 Common Prayer: Criminal Revision Cases filed under Section 397 r/w 401 of Cr.P.C., to call for the records in C.M.P.Nos.4964 of 2015, 6353 of 2015, 6373 of 2015, 6173 of 2015, 4964 of 2015, 6374 of 2015, 6375 of 2015 respectively in C.C.No.530 of 2007 on the file of Judicial Magistrate, Alandur, dated 19.11.2015, set aside the same and consequently discharge the petitioners from the calendar case in C.C.No.530 of 2007 on the file of the Judicial Magistrate, Alandur. Crl.R.C.No.1227 of 2015:- For Petitioners : Mr.PL.Narayanan For Respondents : Ms.M.F.Shabana, GA (Crl.side) for R1 Mr.R.Shanmugasundaran, SC for Mr.V.Elangovan for R5 Mr.V.Raghavachari for R6 Crl.R.C.Nos.142, 143, 144, 146 and 147 of 2016: For Petitioner :Mr. PL.Narayanan For Respondent :Ms.M.F.Shabana, GA (crl.side) Crl.R.C.No.145 of 2016: For Petitioner :Mr. PL.Narayanan For Respondents :Ms.M.F.Shabana, GA (crl.side) for R1 No appearance for R2 & R3 --------- C O M M O N O R D E R
These Criminal Revision Cases are directed against the common order in C.M.P. Nos. 4964 of 2015, 6353 of 2015, 6373 of 2015, 6173 of 2015, 4964 of 2015, 6374 of 2015, 6375 of 2015 respectively in C.C.No.530 of 2007 passed by the learned Judicial Magistrate, Alandur, dated 19.11.2015.
2. The main facts leading to the revisions are as follows:-
The respondent/complainant M.S.Hameed, on 29.07.2006, filed a complaint before the Judicial Magistrate, Alandur. After taking the complaint on file on 03.07.2006, the learned Judicial Magistrate, Alandur forwarded the same to the Assistant Commissioner of Police for investigation and report. On receipt of the complaint, the Assistant Commissioner of Police for investigation has directed the first respondent, who was in-charge of the station, to register the First Information Report. Accordingly, the first respondent has registered First Information Report in Crime No.815 of 2006 on 04.08.2006. After registering the case, the first respondent took up the case for investigation and recorded the statements. After completion of investigation, a final report was filed before the concerned Judicial Magistrate, Alandur on 17.04.2007.
3. Thereafter, the present revision petitioners and other request persons jointly filed a quash petition before this Court in Crl.O.P.No.24609 of 2007 and the same was dismissed as not pressed on 17.11.2014. Thereafter, one of the accused by name Naveenkumar Kochar filed another quash petition in Crl.O.P.No.15866 of 2015 to quash the charge sheet and the same was also dismissed on 24.07.2015.
4. Again, the petitioners and other accused filed petitions in C.M.P.Nos.4964 of 2015, 6353 of 2015, 6373 of 2015, 6173 of 2015, 4964 of 2015, 6374 of 2015, 6375 of 2015 in C.C.No.530 of 2007 respectively before the learned Judicial Magistrate, Alandur. After hearing the arguments on either side, the learned Judicial Magistrate, Alandur dismissed the discharge petitions filed by the present revision petitioners on 19.11.2015. Aggrieved by the order of dismissal passed by the learned Judicial Magistrate, Alandur, the petitioners/accused have filed the present revision petitions.
5. It is admitted on either side that during the year 2007, the present petitioners/accused filed a quash petition in Crl.O.P.No.24609 of 2007 before this Court to quash the charge sheet against him and the same was dismissed as not pressed on 17.11.2014. Further, one of the accused by name, Naveenkumar Kochar filed another quash petition in Crl.O.P.No.15866 of 2015 to quash the charge sheet and the same was dismissed by this Court on 24.07.2015. After that, the present petitioners/accused filed petitions in C.M.P.Nos.6375, 6374, 6373, 6173, 4964 and 6353 of 2015 in C.C.No.530 of 2007 before the trial Court. Since all the petitions were heard jointly, a common order was delivered by the trial Court.
6. Learned counsel appearing for the petitioners/accused mainly would contend that the final report filed against the accused 1 to 11 by the respondent-police, pursuant to the investigation, is not sustainable and there is no materials available to proceed against the present petitioners regarding alleged conspiracy happened on 24.09.2004 and on 01.10.2004. Further, the trial Court, without application of mind, has dismissed the discharge petition on the ground that on the date of execution of sale deed in favour of the 7th respondent, the 7th respondent was a major. The Trial Court failed to look into the fact that there is no material available to frame charges under Sections 409 r/w 109 and 120(B) IPC. The trial Court failed to look into the fact that the petitioners/accused, who are not directors of the company, are not come under the provision of Section 409 IPC.
7. The trial Court failed to appreciate the fact that there is no territorial jurisdiction for the respondent-police to take up the investigation and to proceed the case. The trial court failed to look into the fact that there is no prima facie case as against the petitioners/accused to file the final report. The trial Court failed to appreciate that the defacto complainant's Company had suppressed the factum that they have lost the case in O.S.No.317 of 2007, pending before the District Court, Chengalpet. The Trial Court failed to consider the fact that there is a dispute with regard to investment of money, suit in O.S.No.317 of 2007 for rendering the account was filed. The Trial Court failed to appreciate that the sale deeds were not executed by five accused, but only by Mr.S.Somasundaram. The trial Court failed to consider the fact that the defacto complainant himself has withdrawn the money from the Company. The Trial Court failed to consider all the relevant materials produced on the side of the revision petitioners. Further, the trial Court without appreciating the fact, dismissed the discharge petitions filed by the petitioners/accused. Hence, these revision petitions have to be allowed.
8. Further, the learned counsel appearing for the petitioners/accused would mainly contend that the investigating authority has no territorial jurisdiction to investigate the case and the defacto complainant has not questioned the breach and no conspiracy was proved by producing any materials and there is no breach of trust under Sections 120B, 109 and 409IPC. Since the investigation was not done properly, as per the order of the Court and no materials were collected against the petitioners/accused to frame the charges and file the final report, the petitioners/accused have to be discharged from the charges leveled against them.
9. The learned counsel appearing for the respondent would submit that as per the direction of the trial Court, First Information Report was registered, investigated and final report was filed before the concerned Court. The petitioners/accused had filed quash petitions to quash the charges against the petitioners, which were dismissed by the trial Court as well as this Court. Further, as per the direction of the Court, the Officer, who is authorized to register the case investigated the case. After completion of investigation and examination of eight witnesses, he recorded the statements of the petitioners/accused under Section 164 Cr.P.C. After collecting the materials, filed the final report. A prima facie case was made out against the accused that the accused would have committed the offence as stated in the final report. Hence, the argument of the learned counsel appearing for the petitioners that there is no materials available to frame charges against the petitioners/accused, is not acceptable. Further, there were enough materials available and statements, which were recorded by the Police. The trial Court, after considering the entire arguments of the petitioners, dismissed the discharge petitions and there is no illegality or infirmity in the order of the trial Court. Hence, all the revision petitions are liable to be dismissed.
10. In this case, the learned counsel appearing for the revision petitioners would mainly contend that the trial Court has no territorial jurisdiction to entertain the complaint and to register First Information Report. Hence, without any territorial jurisdiction, the case was registered by the respondent police. Hence, the charges filed by the prosecution authority have to be quashed.
11. Per contra, the learned counsel appearing for the respondent would contend that this case was registered as per the direction of the learned Judicial Magistrate, Alandur. Even according to the complaint, the cause of action arose within the territorial jurisdiction. Hence, there is no infirmity or illegality in registering the First Information Report by the respondent police.
12. The learned counsel appearing for the petitioners relied upon the following decisions of the Hon'ble Supreme Court as well as the High Court in 1. [Union of India v. Prafulla Kumar Samal and another reported in ((1979)3 SCC 4)]; 2.[Kehar Singh and others v. The State (Delhi Admn.) reported in (AIR 1988 Supreme Court 1883(1))]; 3.[ Dilawar Balu Kurane v. State of Maharashtra reported in ((2002)2 Supreme Court Cases 135)]; 4. [Y.Abraham Ajith and Ors. v. Inspector of Police, Chennai and Anr. judgment in (Crl.A.No.904 of 2004 (arising out SLP (Crl.) No.4573/2003) dated 17.08.2004)]; 5. [State Inspector of Police, Vishakhapatnam v. Surya Sankaram Karri reported in ((2006) 7 Supreme Court Cases 172)]; 6. [Rahmania Coffee Works and Ors. v. State judgment in Crl.A.No.337 of 2003 dated 26.02.2015]; 7. Pooja Pal v. Union of India and others reported in ((2016)3 Supreme Court Cases 135)] and the decision of this Court in [V.R.Nedunchezhian v. State in Crl.Rev.Case No.865 of 1998 and Crl.M.P.No.62/2 of 1998 dated 29.04.1999].
13. In this case, on perusal of the complaint, it is admitted by both the parties that the case was registered in Crime No.815 of 2006, as per the direction of the learned Judicial Magistrate, Alandur. Furhter, it is admitted that the complaint was presented by the defacto complainant before the Judicial Magistrate, Alandur on 29.07.2006. As per the direction of the learned Judicial Magistrate, Alandur, on 31.07.2006, the said complaint was forwarded to the Assistant Commissioner of Police for investigation. On receipt of the complaint, the Assistant Commissioner of Police has directed the first respondent police, who is authorized to register the case, to register the case for investigation. Accordingly, Frst Information Report in Cr.No.815 of 2006 was registered on 04.08.2006.
14. Further, In the First Information Report, column 5 reads thus:
5. Place of Occurrence (a) Direction and Distance from PS Fw;w epfH;tplk; (m) fhty; epiyaj;jpypUe;J vt;tst[ J}uKk; vj; jpira[k;/...Semmancheri, 8 km, South beat Number Kiwf; fhty; vz;...... IV
(b) Address Kftup
(c)In case outside limit of this police station, then the Name of P.S. ,f; fhty; epiya vy;iyf;fg;ghy; ele;J ,Uf;Fkhapd; me;epiyapy; me;j fh/ep/ bgah;///////////District//////// khtl;lk; is made. The learned counsel for the petitioners contended that the respondent police has on the date of registration of the FIR thus without any information on record with regard to the cause of action within its jurisdiction, only to please the defacto complainant has registered the FIR in its station. Thus, the very foundation of the case is prima facie lacking. Therefore, on the issue of jurisdiction, the petitioners are liable to be discharged.
15. In this case, a reading of the above column mentioned in the First Information Report is clearly reveals that the concerned police station can register the First Information Report, even though the cause of action arose outside the jurisdiction of the particular police station. Further, it is useful to read the following Sections 177 and 178 of Cr.P.C.:
177. Ordinary place of inquiry and trial Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed
178. Place of inquiry or trial:-
(a) When it is uncertain in which of several local areas an offence was committed, or
(b) where an offence is committed partly in one local area and partly in another, or
(c) where an offence is a continuing one, and continues to be committed in more local areas than one, or
(d) where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas
16. On perusal of the relevant materials and the First Information Report, admittedly, there are incriminating materials available from the records and the cause of action was arose within the jurisdiction of the particular police station, which comes under the learned Judicial Magistrate, Alandur. Hence, as per the above stated facts, this Court is of the considered view that the argument of the learned counsel appearing for the revision petitioners that the Judicial Magistrate, Alandur has no power to direct the respondent police to register the case is liable to be rejected. Accordingly, the above said argument is rejected.
17. The learned counsel for the petitioners would contend that there is no incriminating materials available or general probabilities available on the statements recorded by the prosecution to charge levelled against the accused. Further, the learned counsel appearing for the petitioners would submit that the defacto complainant has not come with clean hands to file the complaint before the trial Court and further, there was no evidence for conspiracy, breach of trust and abatement. There is no incriminating materials to frame charges levelled against the accused under Section 109, 120B, 409IPC.
18. The learned counsel appearing for the respondent would contend that as per the direction of the learned Judicial Magistrate, Alandur, the police investigated the offence and recorded the statement of witnesses and produced the documents before this Court. On reading of entire materials, there are so much of incriminating materials available to level the charges against the accused.
19. Per contra, the learned counsel appearing for the petitioners would contend that the documents and other materials produced on the side of the prosecution are not believable and the complainant has not come with clean hands before the Court. It shows that the dispute between the parties is civil in nature and the case in A.S.No.1002 of 2009 is pending between the parties before this Court and hence, the charges have to be quashed. Whether the materials produced by the prosecution authority is believable or not believable? 2. Whether it is reliable or not reliable? and 3.Whether the evidence are sufficient or not against the accused can not be decided at the preliminary stage. It has to be decided only after examination of witness and on production of documents, during the time of trial alone. Hence, the arguments of the learned counsel appearing for the petitioners that on reading of the complaint, statements and documents produced on the side of the revision petitioners are not reliable and not believable, cannot be accepted at this stage. In this case, from the materials produced on the side of the prosecution, there are sufficient incriminating materials available on record, to presume that the accused would have committed the offence and framed charges against them. Hence, the argument of the learned counsel appearing for the petitioners that civil suit is pending between the parties and hence, the charges have to be quashed, cannot accepted.
20. The argument of the learned counsel for the petitioners that the defacto complainant has not come with clean hands to lodge the complaint before the Court cannot be accepted. In this case, the only point has to decide is whether any material available to presume the charges against the accused or not and it cannot be decided and whether the complainant has come with the clean hands or not. Hence, the above arguments advanced on the side of the petitioners cannot be accepted.
21. In this case, on producing sufficient materials on the side of the prosecution, the charges were framed against the accused under Section 109, 120B, and 409 IPC. The argument of the learned counsel for the petitioners that the charges cannot be framed for the above said offence, cannot be decided at the present stage, if at all petitioners are at liberty to raise all the points during the course of trial and final disposal of the case. The above said points cannot be decided in the present case.
22. Regarding the other accused, the arguments of the learned counsel for the petitioners that since they could not have committed offence or they could not come under the family members of the first accused and they are only purchasers of the property. The charges leveled against them cannot be quashed at the present stage because of all the documents in the name of the other accused. Whether the charges proved against the accused or not, has to be decided only during the course of trial, not at the present stage.
23. The learned counsel appearing for the petitioners that the police authority have to follow the order passed under Section 190(1)(c) Cr.P.C., by the learned Judicial Magistrate. In this case, admittedly, the learned Judicial Magistrate, Alandur, on receipt of the complaint, has directed the Assistant Commissioner of Police for investigation and report. On receipt of the complaint, the Assistant Commissioner of Police has in turn directed to the first respondent to investigate and send the final report to the concerned Court. Hence, the Assistant Commissioner of Police has not registered the case and investigate the same. Contra, he forwarded the complaint and directed the Inspector of Police/first respondent, Assistant Commissioner of Police failed to follow the investigation given by the Magistrate. Hence, the investigation done by the Inspector of Police has not taken up to the mark and the investigation is not proper. Hence, the charges leveled against the present petitioners have to be quashed.
24. In this case, admittedly, the Assistant Commissioner of Police has no jurisdiction to register the case. The particular Inspector of Police, who was in-charge of the concerned Station, has alone power to register the case even though the Assistant Commissioner of Police is a Supervising Authority over the work of the Inspector of Police. Hence, the Assistant Commissioner of Police, on receipt of the complaint, immediately directed the Inspector of Police to register the case and immediately, on receipt of the complaint, registered in crime No.815 of 2006 by the Inspector of Police and the case was taken up for investigation and the Inspector of Police has investigated the case and file the final report before the concerned court. The learned counsel appearing for the petitioners submitted that though the learned Judicial Magistrate has directed the Assistant Commissioner of Police to investigate and to file final report, since the case was not investigated by the Assistant Commissioner of Police, the charges leveled against the accused is not at all accepted. The Assistant Commissioner of Police, within his limit, has directed the Inspector of Police to register the case and in furtherance, the Inspector of Police has registered the case and filed the final report. Hence, there is no illegality and infirmity in the investigation by the Inspector of Police. Further, the final report was filed before the learned Judicial Magistrate and the same was taken on file as C.C.No.530 of 2007. Hence, the above said arguments of the learned counsel appearing for the petitioners that the charges against the accused are to be quashed, is not at all accepted. The argument of the learned counsel appearing for the petitioners that since the Assistant Commissioner of Police was not investigated the case and the investigation has to be quashed, is rejected.
25. Further, in this case, all the accused have filed a petition in Crl.O.P.No.24609 of 2007 before this Court under Section 482 of the Criminal Procedure Code prayed to call for the records relating to the case in C.C.No.530 of 2007 on the file of the learned Judicial Magistrate, Alandur and to quash the same. After hearing the arguments on both sides, this Court has dismissed the Crl.O.P.No.24609 of 2007 on 17.11.2014. The paragraph No.4 of the order reads thus:-
4. In view of the above, the criminal original petition is dismissed as not pressed, however, with a liberty to the petitioners to raise all the grounds available to them by facing trial and to approach this court at a later point of time, if so advised, after the final disposal of the civil appeal in A.S.No.1002 of 2009 on the file of this Court.
26. After that, one Naveenkumar Kochar, who is the fourth accused, has filed a petition in Crl.O.P.No.15866 of 2015 under Section 482 of the Criminal Procedure Code to call for the records of the case in C.C.No.530 of 2007 pending on the file of the learned Judicial Magistrate, Alandur and quash the same. For the reasons stated in the above criminal original petition and also similar reasons stated in the present criminal original petition, this Court, after hearing both sides, has passed the following orders:
3. On a complaint lodged by one M.S.Hameed, the case in Crime No.815 of 2006 was registered by the Sub-Inspector of Police, Thuraipakkam Police Station, Kancheepuram District and after completing the investigation, a final report has been filed in C.C.No.530 of 2007 before the learned Judicial Magistrate, Alandur. Challenging which, the fourth accused is before this Court for quashing the prosecution as against him.
4. It is the case of the prosecution that M.S.Hameed - defacto complainant and Dhanraj Kochar (A1) were Directors in M/s.D.R. Foundations and Estates Pvt. Ltd., which was established for carrying on real estate business in and around Siruseri and Semmancheri. According to the defacto-complainant, he invested around Rs.1,71,00,000/- in the company and that, Dhanraj Kochar (A1) siphoned the amount steadily in an ingenuous manner in the name of children and grand children. It is the case of the petitioner herein that neither the final report nor the documents collected by the police disclose the involvement of this petitioner in the offence.
5. Be that as it may, it is brought to the notice of this Court that earlier all the accused in this case including the petitioner herein filed criminal original petition in Crl.OP.No.24609 of 2007 before this Court and this Court granted stay of the trial. When the matter came up on 17.11.2014 before the learned Single Judge, it is seen that the learned single judge heard the parties and ultimately the accused /petitioners represented that they will withdraw the petition. The learned Judge in the order dated 17.11.2014 in Crl.OP.No.24609 of 2007 is recorded as follows:
"When this original petition came up for hearing, the learned counsel for the petitioners submitted that he does not press this original petition. He has also made an endorsement to that effect. Permission is accordingly granted.
2. . . . .
3. . . .
4. In view of the above, the criminal original petition is dismissed as not pressed, however, with a liberty to the petitioners to raise all the grounds available to them by facing trial and to approach this court at a later point of time, if so advised, after the final disposal of the civil appeal in A.S.No.1002 of 2009 on the file of this Court."
6. The Learned Additional Public Prosecutor submitted that the petitioner herein who was the fourth petitioner in Crl.OP.No.24609/2007 had raised all the points earlier and when this Court was about to dismiss the petition, the petitioner withdrew the same with liberty to raise all the grounds available by facing trial and to approach this Court at a later point of time, if so advised, after the final disposal of the civil appeal in A.S.No.1002 of 2009 on the file of this Court.
7.It is admitted by all the parties that A.S.No.1002 of 2009 is still pending and it is not yet been disposed.
8. In view of the categorical order passed by this Court in Crl.O.P.No.24609 of 2007 that the petitioners will be entitled to approach this Court only after disposal of A.S.No.1002 of 2009, the present petition filed by the petitioner canvassing the same points that was canvassed in Crl.O.P.No.24609 of 2007, is not maintainable.
9. In the result, the criminal original petition is dismissed. Consequently, connected miscellaneous petition is closed.
27. One P.Ramamoorthy, on the side of the defacto complainant, has filed petition before this Court in Crl.O.P.No.2856 of 2015 to fix the time limit for dispose of the trial in the case in C.C.No.530 of 2007. This Court, after hearing arguments of both sides, passed the final order on 05.02.2015 directing the trial court to dispose the trial on or before 31.07.2015.
28. Further, it is also admitted by both sides that a concerned civil suit in A.S.No.1002 of 2009 is also pending before this Court. Admittedly, pending before this Court, Crl.O.P.No.24609 of 2007 was filed by the petitioners/accused and Crl.O.P.No.15866 of 2015 was filed by the fourth accused independently as stated above. After hearing the arguments, the above quash petitions were dismissed as not pressed with liberty to the petitioners to raise all the grounds available to them by facing trial and to approach the this Court at a later point of time, if so advised, after the final disposal of the Civil Appeal in A.S.No.1002 of 2009 on the file of this Court.
29. It is admitted by both sides, even now the first appeal in A.S.No.1002 of 2009 is pending between this Court, in view of the above, all the petitioners/accused previously preferred the petitions under Section 482 of the Criminal Procedure Code in Crl.O.P.No.24609 of 2007 and the same was dismissed on 17.11.2014 with liberty to the petitioners to raise all the points before the trial Court during the time of trial. Without following the order of this Court dated 17.11.2014, the present petitions were filed to quash the charges against the accused in C.C.No.530 of 2007, even during the pendency of the appeal in A.S.No.1002 of 2009.
30. Hence, this Court is of the considered view that since there are enough materials available to presume that the accused should have committed offence as per the final report, the discharge petitions filed by the present petitioners are deserved to be dismissed and the revisions are liable to be dismissed. Accordingly, these petitions are dismissed with liberty to the petitioners to raise all the grounds before the trial court by facing the trial. Further, the trial Court is directed to dispose of the case in C.C.No.530 of 2007 on day to day basis, within a period of 12 weeks from the date of receipt of a copy of this order. Consequently, connected Miscellaneous Petitions are closed. No costs.
20.01.2017 To The Inspector of Police, J-9, Thuraipakkam Police Station, Kancheepuram District.
G.CHOKALINGAM,J.
ari Crl.R.C.Nos.1227 of 2015 & Crl.M.P.No.270, 651 of 2016 Crl.R.C.Nos.142,143, 144, 145, 146 and 147 of 2016 and Crl.M.P.Nos.941 to 945 of 2016 20.01.2017 http://www.judis.nic.in