Madras High Court
K. Suriyanarayanan vs The Inspector Of Police on 17 February, 2020
Author: P.Rajamanickam
Bench: P.Rajamanickam
CRL.OP.Nos.25329 and 30409 of 2019
IN THE HIGHCOURT OF JUDICATURE AT MADRAS
Reserved on : 21.01.2020
Pronounced on : 17.02.2020
CORAM:
THE HONOURABLE MR.JUSTICE P.RAJAMANICKAM
CRL.OP.Nos.25329 and 30409 of 2019
and
CRL.MP.Nos.16484 and 13539 of 2019
CRL.OP.No.25329 of 2019
K. Suriyanarayanan ...Petitioner
Vs.
1. The Inspector of Police,
District Crime Branch,
Ariyalur, Ariyalur District,
(Cr.No.3 of 2019)
2.Maruthai ..Respondents
Prayer in CRL.OP.No.25329 of 2019: Criminal Original Petition is filed
under Section 482 of the Code of Criminal Procedure to
a) Grant stay of all further proceedings in Cr.No.3 of 2019 on the file
of the Inspector of Police, District Crime Branch, Ariyalur, Ariyalur District
pending disposal of the above quash petition.
b) Call for the entire records concerned in Cr.No.3 of 2019 on the file
of the Inspector of Police, District Crime Branch, Ariyalur, Ariyalur District
and quash the same in so far as the petitioner is concerned.
For Petitioner : Mr.S.Ayyathurai
Senior Counsel
for Mr.C. Prakasam
https://www.mhc.tn.gov.in/judis/
1/20
CRL.OP.Nos.25329 and 30409 of 2019
For Respondents : Mr.M. Mohamed Riyaz (for R1)
Additional Public Prosecutor
Mr.V. Prakash,
Senior Counsel and
Mr.P.R. Thiruneelakandan for R2
CRL.OP.No.30409 of 2019
A. Veeravel ...Petitioner
Vs.
1. The Inspector of Police,
District Crime Branch,
Ariyalur, Ariyalur District,
(Cr.No.3 of 2019)
2.Maruthai
3.Gowthami
4.K. Krishnamoorthy ..Respondents
Prayer in CRL.OP.No.30409 of 2019: Criminal Original Petition is filed
under Section 482 of the Code of Criminal Procedure to
a) Dispense with the production of the Certified copy of the FIR in
Cr.No.3 of 2019 on the file of the Inspector of Police, District Crime
Branch, Ariyalur, Ariyalur District for the present.
b) Grant stay of all further proceedings in Cr.No.3 of 2019 on the file
of the Inspector of Police, District Crime Branch, Ariyalur, Ariyalur District
pending disposal of the above quash petition.
c) Call for the entire records concerned in Cr.No.3 of 2019 on the file
of the Inspector of Police, District Crime Branch, Ariyalure, Ariyalur District
and quash the same in so far as the petitioner is concerned.
For Petitioner :Mr.C. Prakasam
For Respondents : Mr.M. Mohamed Riyaz (for R1)
Additional Public Prosecutor
https://www.mhc.tn.gov.in/judis/
2/20
CRL.OP.Nos.25329 and 30409 of 2019
Mr.V. Prakash,
Senior Counsel
Mr.P.R. Thiruneelakandan for R2
Mr.R. Sethuvarayar for R3
Mr.R. Anburaj for R4
COMMON ORDER
Crl.OP.No.25329 of 2019 has been filed by A1 and Crl.OP.No.30409 of 2019 has been filed by A2 to quash the FIR in Cr.No.3 of 2019 on the file of the first respondent.
2. Mr.S.Ayyathurai, learned senior counsel assisted by Mr.C.Prakasam learned counsel for the petitioner/A1 in Crl.OP.No.25329 of 2019 has submitted that A1 was working as Branch Manager in City Union Bank, Vilandai Branch, Andimadam, Ariyalur District during the period from 18.12.2015 from 12.04.2019 and subsequently, he was transferred to Adilabad, Telungana State. He further submitted that the second respondent in both the petitions (Maruthai) operating his Savings Bank Account and Current Account and he represented before the bank that he is running steel, cement, tiles, paint and all construction materials business at Srimushnam and in this connection, he obtained term loan for purchase of car and subsequently he obtained mortgage loan and also obtained term loan and overdraft loan in his family members' name. He further submitted that since at that time, the printed cheque leaves not get ready in his name and his family members' name, he made request before the said bank to transfer money to his suppliers account by giving https://www.mhc.tn.gov.in/judis/ 3/20 CRL.OP.Nos.25329 and 30409 of 2019 written instructions, since he constructed the buildings and he purchased building materials through the building contractor viz., Vel Construction and it is Proprietor Veeravel (petitioner in Crl.OP.No.30409 of 2019/A2), in this connection, the said Maruthai entered into agreement with A2 for the purpose of constructing his house. He further submitted that only as per the instructions of the said Maruthai and his family members, amounts were transferred from their accounts to the suppliers' accounts. He further submitted that since the dispute arose between the said Maruthai and A1 Veeravel with regard to the construction of Maruthai building, A2 filed a suit in O.S.No.220 of 2019 on the file of the Principal District Judge, Cuddalore and subsequently, the said suit has been transferred to the file of the Additional Principal Judge, Virudachalam and the same is still pending. He further submitted that the cheques issued by the said Maruthai to various persons for purchase of the construction materials and other works, were dishonoured and hence, the said creditors had filed a private complaint against the said Maruthai and they are also pending.
3. He further submitted that the said Maruthai has received his bank statement and also his family members bank statement every year and filed income tax return admitting the said transactions. He further submitted that only with a view to escape from the criminal cases and the civil suit which were filed by the creditors, the said Maruthai and his family members have lodged a false complaint before the Superintendent of Police and the said complaint was forwarded to the first respondent and https://www.mhc.tn.gov.in/judis/ 4/20 CRL.OP.Nos.25329 and 30409 of 2019 that the first respondent without conducting any preliminary enquiry registered the FIR on 09.09.2019 in Cr.No.3 of 2019 under Sections 120- B, 419, 420, 409, 424, 465, 466, 468, 477-A and 506(1). He further submitted that in the FIR, it is clearly stated that the aforesaid transactions took place between 25.07.2016 to 19.12.2016 and after waiting for nearly 3 years, the said Maruthai and his wife Gowthami (R3 in Crl.OP.No.30409 of 2019) and his father K.Krishnamoorthy (R4 in Crl.OP.No.30409 of 2019) lodged a complaint with false allegations. He further submitted that since the amounts were transferred from the account of the aforesaid persons only as per their written instructions, the accused persons have not committed any offence as alleged in the FIR.
4. In support of the aforesaid contentions, Mr.S.Ayyathurai, the learned Senior Counsel, has relied upon the following decisions.
1) Gopal Chandra Paul Vs. State of Assam and another 2019 CRL.L.J. 1613 (Gauhati High Court)
2)Somdatt Mishra Vs. The State of M.P & Another (M.Cr.C.No.8366 of 2016) on the file of the Madhya Pradesh High Court Bench at Gwalior
3. Ashok Kumar Gupta Vs. State of Uttar Pradesh and another (2017) 11 SCC 239
4. Vineet Kumar and Others Vs. State of Uttar Pradesh, (2017) 13 SCC 369 https://www.mhc.tn.gov.in/judis/ 5/20 CRL.OP.Nos.25329 and 30409 of 2019
5. Mr.C.Prakasam, who is appearing for the petitioner in Crl.OP.No.30409 of 2019/A2 has adopted the arguments advanced by Mr.S.Ayyathurai, learned Senior Counsel. He further submitted that the petitioner in Crl.OP.No.30409 of 2019 viz., A. Veeravel has entered into an agreement with the said Maruthai on 07.04.2016 for constructing the said Maruthai's building and in pursuance to the said agreement, the said Veeravel has constructed the building by purchasing the building materials from others but the said Maruthai did not pay the said amount to him and also to the suppliers of the materials. He further submitted that the said Maruthai and his family members gave written instructions before the City Union Bank, Vilandhai Branch, wherein, they were having accounts and only based on the said written instructions, the amounts were transferred from their accounts to the accounts of the suppliers. He further submitted that since apart from the said written instructions given before the bank, the said Maruthai has issued cheques to the creditors and one such cheque was issued to the A2 for the amount due to him (Rs.15 lakhs) and when the said cheque was presented for collection, the said cheque was dishonoured on 06.04.2019 with an endorsement of “exceeds arrangements”. He further submitted that the said Maruthai is liable to pay a sum of Rs.31,64,122/- to A2 with subsequent interest and hence the A2 has field a suit in O.S.No.220 of 2019 on the file of the Principal District Judge, Cuddalore, for recovery of the aforesaid amount and subsequently, the said suit was transferred to the Additional District Judge, Virudachalam and the same is still pending. He further submitted https://www.mhc.tn.gov.in/judis/ 6/20 CRL.OP.Nos.25329 and 30409 of 2019 that suppressing the aforesaid facts, the said Maruthai and his family members have lodged a false complaint and based on the same, FIR has been registered against A1 and A2 and hence he requests to quash the said FIR.
6. Mr.V.Prakash, the learned Senior Counsel, assisted by the Mr.P.R.Thiruneelakandan, the learned counsel for R2 in both the Original Petitions has submitted that the second respondent Maruthai and respondents 3 and 4 in Crl.OP.No.30409 of 2019 are the wife and the father of the second respondent Maruthai respectively. He further submitted that they are running business dealing with the building construction materials and in order to develop their business, they approached the A1 who was the Branch Manager of the City Union Bank, Vilandhai, Andimadam, Ariyalur District and A1, in turn, instructed them to approach A2. He further submitted that as per the instructions of both the accused, the said Maruthai and his family members have submitted their documents before A1 seeking term loan and accordingly, overdraft facilities were provided and sanctioned term loan. He further submitted that without any written instructions, at the instance of A2, A1 has transferred huge amount of Rs.1,28,30,395/- from the account of the said Maruthai and his family members to the account of A2 and others. He further submitted that after knowing the said fact, the said Maruthai and his family members have lodged a complaint before the Superintendent of Police, Ariyalur and the same has been forwarded to the Inspector of https://www.mhc.tn.gov.in/judis/ 7/20 CRL.OP.Nos.25329 and 30409 of 2019 Police, District Crime Branch, Ariyalur and based on the same, FIR has been registered against the petitioners herein under Sections 120-B, 419, 420, 409, 424, 465, 466, 468, 477-A and 506(1). He further submitted that neither the said Maruthai nor the family members gave any written instructions to transfer the amount from their accounts. He further submitted that if any such written instructions is available and that should be a forged one. He further submitted that the alleged agreement with A2 with regard to construction of building also forged one. He further submitted that only with a view to escape from this case, the second accused has filed a suit with false averments. He further submitted that there are sufficient materials to proceed against the petitioners and therefore, he prayed to dismiss this petition.
7. Mr.V.Prakash, the learned Senior Counsel, in support of his contentions relied upon the following decisions:
1. State of Bihar Vs. Murad Ali Khan & Others, CDJ 1988 SC 080
2. Union of India Vs. Prakash P. Hinduja and Another, (2003) 6 SCC 195
3. Central Bureau of Investigation Vs. Arvind Khanna, CDJ 2019 SC 1193.
8. Mr.R. Sethuvarayar, learned counsel for the third respondent in Crl.OP.30409 of 2019 and Mr.R.Anburaj, learned counsel for fourth https://www.mhc.tn.gov.in/judis/ 8/20 CRL.OP.Nos.25329 and 30409 of 2019 respondent in Crl.OP.No.30409 of 2019 have adopted the arguments of the Mr.V.Prakash, learned Senior Counsel for the second respondent in both the Criminal Original Petitions. Further, they relied upon the following decisions in support of their contentions.
1.Parbatbhai Aahir Alias Parbatbhai
Bhimsinhbhai Karmur and Others Vs. State of
Gujarat and Another.
2. Padal Venkat Rama Reddy @ Ramu Vs. Kovvuri
Satyanarayana Reddy & Others (Crl.A.No.1499 of 2011 arising out of S.L.P. (Crl) No.929 of 2011) dated 29.07.2011
9. Mr.M.Mohamed Riyaz, the learned Additional Public Prosecutor who is appearing for the first respondent in both the Original Petitions, has adopted the arguments of the Mr.V.Prakash, learned Senior Counsel for the second respondent and he also prayed to dismiss the petitions.
10. In Gopal Chandra Paul Vs State of Assam and another (cited supra), the petitioner therein was a Deputy Manager of State Bank of India. He lodged a complaint stating that he found that one locker was opened and based on the same, the FIR was registered and after investigation, Investigating Officer has held that as the informant was in-charge of the locker at the relevant time and without his https://www.mhc.tn.gov.in/judis/ 9/20 CRL.OP.Nos.25329 and 30409 of 2019 knowledge, the said locker could not be opened and hence he filed a charge sheet against the said informant (petitioner therein). The said petitioner has filed a petition under Section 482 Cr.P.C., to quash the proceedings. The Gauhati High Court has quashed the proceedings against the petitioner therein holding that since the informant who lodged the FIR was held to be the accused by the Investigating Officer, on the basis of suspicion which is not sustainable. But, in this case, the case is at FIR stage. Therefore, the aforesaid decision will not apply to the facts and circumstances of the present case.
11. Somdatt Mishra Vs. The State of M.P & Another (cited supra), also after investigation, charge sheet was filed against the public servant under Sections 354, 506 and 452 of IPC and challenging the said charge sheet, the accused has filed quash petitions, but in this case, the charge sheet not yet filed. Hence, the aforesaid decision also will not apply to the facts and circumstances of the case.
12. In Ashok Kumar Gupta Vs. State of Uttar Pradesh and another (cited supra), a criminal complaint filed by a private respondent stating that the appellant therein along with Accused No.2 supplied books to the complainant who did not pay for books on the ground that books were not of proper standard, but appellant took away blank cheque and the cheque book which were kept in drawer of the table of the complainant and falsely entered the amount of Rs.97,552/- The appellant https://www.mhc.tn.gov.in/judis/ 10/20 CRL.OP.Nos.25329 and 30409 of 2019 therein sought quashing of the said complaint on the ground that the criminal complaint was a counterblast to the notice of dishonour of cheque upon which a summoning order had been passed and proceedings under Section 138 of the Negotiable Instruments Act were initiated by the appellant. Taking into consideration of the facts and circumstances of the said case, the Hon'ble Supreme Court has held that the proceedings are clear abuse of process of law. But, in this case, the petitioners have not produced any materials to show that any of the creditors of the second respondent or his family members have filed any criminal complaint against them. Therefore, the aforesaid decision will not help the petitioners.
13. In Vineet Kumar and Others Vs. State of Uttar Pradesh and another, the complainant, her husband and son had taken different amounts totalling to a sum of Rs.22 lakhs and 50 thousand in the month of May, 2015 for business/shop purposes from the appellant/accused. Three agreements were written on non-judicial stamp papers on 29.05.2015, 01.06.2015 and 31.08.2015 wherein the complainant, her husband and son had acknowledged receipt of the money. Cheques of Rs.6 lakhs, Rs.14 lakhs 50 thousand were given to the appellant/accused for ensuring the repayment. When the cheques were dishonoured the appellant/Accused filed complaints under Section 138 of the Negotiable Instruments Act in the month of September, 2015 against the complainant, her husband and son for non-payment of amount. https://www.mhc.tn.gov.in/judis/ 11/20 CRL.OP.Nos.25329 and 30409 of 2019 Thereafter, on 30.10.2015, the complainant filed an application under Section 156 (3) Cr.P.C., against all the three accused alleging commission of offence under Sections 376 (d), 323 and 452 IPC. No medical examination was done on the date of incident or even on the next date or on 07.11.2015, when the Investigating Officer asked the complainant to get done the medical examination. Subsequently it was done on 20.11.2015 and hence the Hon'ble Supreme Court has held that the said examination was wholly irrelevant. Further, it was held that apart from bald assertions made by the complainant that all the accused have raped her, there was nothing which could have led the courts to form an opinion that the present case is a fit case of prosecution which ought to be launched. Taking into consideration of all the aforesaid facts, the Hon'ble Supreme Court has quashed the proceeding as the said proceedings were instituted with an ulterior motive for wrecking vengeance due to personal grudge. But in this case, the facts are totally different. In this case, as already pointed out though the petitioners have stated in their petition that the creditors of the second respondent and his family members have initiated criminal proceedings against them based on the cheques issued by them were bounced, they have not produced any materials to substantiate the said allegations. Hence, the aforesaid decision also will not apply to the facts and circumstances of the case.
14. In State of Bihar Vs. Murad Ali Khan and Others, the Hon'ble Supreme Court, has observed as follows:
https://www.mhc.tn.gov.in/judis/ 12/20 CRL.OP.Nos.25329 and 30409 of 2019 “ It is trite that jurisdiction under S.482, Cr.P.C, which saves the power of the High Court, to make such orders as may be necessary to prevent abuse of the process of any Court or otherwise to secure the ends of justice, has to be exercised sparingly and with circumspection. In exercising that jurisdiction the High Court would not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not. That is the function of the trial Magistrate when the evidence comes before him. “
15. Union of India Vs. Prakash P.Hinduja and another, (cited supra), the Hon'ble Supreme Court in paragraph No.20 observed as follows:
“Thus the legal position is absolutely clear and also settled by judicial authorities that the court would not interfere with the investigation on during the course of investigation which would mean from the time of the lodging of the First Information Report till the submission of the report by the officer in charge of the police station in court under Section 173(2) Code, this field being exclusively reserved for the investigating agency.”
16. In Central Bureau of Investigation Vs. Arvind Khanna (cited supra), the Hon'ble Supreme Court in paragraph No.19 has observed as follows:
“19. After perusing the impugned order and on hearing the submissions made by the learned senior counsels on both sides, we are of the view that the impugned order passed by the High Court is not sustainable in a petition filed under Section 482 Cr.P.C., the High Court has recorded findings on https://www.mhc.tn.gov.in/judis/ 13/20 CRL.OP.Nos.25329 and 30409 of 2019 several disputed facts and allowed the petition. Defence of the accused is to be tested after appreciating the evidence during trial. The very fact that the High Court, in this case, went into the most minute details, on the allegations made by the appellant. C.B.I., and the defence put forth by the respondent, led us to a conclusion that the High Court has exceeded its power, while exercising its inherent jurisdiction under Section 482 Cr.P.C.”
17. In Parbatbhai Aahir Alias Parbatbhai Bhimsinhbhai Karmur and Others Vs. State of Gujarat and Another (cited supra), the Hon'ble Supreme Court in paragraph No.18 has held as follows:
“18. The present case, as the allegations in the FIR would demonstrate, is not merely one involving a private dispute over a land transaction between two contesting parties. The case involves allegations of extortion, forgery and fabrication of documents, utilisation of fabricated documents to effectuate transfers of title before the registering authorities and the deprivation of the complainant of his interest in land on the basis of a fabricated power of attorney. If the allegations in the FIR are construed as they stand, it is evident that they implicate serious offences having a bearing on a vital societal interest in securing the probity of titles to or interest in land. Such offences cannot be construed to be merely private or civil disputes but implicate the societal interest in prosecuting serious crime. In these circumstances, the High Court was eminently justified in declining to quash the FIR which had been registered under Sections 384, 467, 468, 471, 120-B and 506(2) of the Penal Code.” https://www.mhc.tn.gov.in/judis/ 14/20 CRL.OP.Nos.25329 and 30409 of 2019
18. In Padal Venkat Rama Reddy @ Ramu Vs. Kovvuri Satyanarayana Reddy & Others (cited supra), the Hon'ble Supreme Court has observed as follows:
“When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge The scope of exercise of power under Section 482 and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in detail in Bhajan Lal (supra). The powers possessed by the High Court under Section 482 are very wide and at the same time the power requires great caution in its exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. It would not be proper for the High Court to analyse the case of the complainant in the light of all the probabilities in order to determine whether conviction would be sustainable and on such premise arriving at a conclusion that the proceedings are to be quashed. In a proceeding instituted on a complaint, exercise of inherent powers to quash the proceedings is called for only in a case in which complaint does not disclose any offence or is frivolous, vexatious or oppressive. There is no need to analyse each and every aspect meticulously before the trial to https://www.mhc.tn.gov.in/judis/ 15/20 CRL.OP.Nos.25329 and 30409 of 2019 find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. The statement of witnesses made on oath to be verified in full and materials put forth in the chargesheet ought to be taken note of as a whole before arriving any conclusion. It is the material concluded during the investigation and evidence led in court which decides the fate of the accused persons. “
19. From the aforesaid decisions, it is clear that it is trite that jurisdiction under Section 482 Cr.P.C., which saves the inherent power of the High Court to make such orders as may be necessary to prevent abuse of the process of any court or otherwise to secure the ends of justice, has to be exercised sparingly and with circumspection. It is also clear that in exercising that jurisdiction, the High Court would not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not. That is the function of the trial court when the evidence comes before it. The inherent power should not be exercised to stifle a legitimate prosecution. Further, there is no need to analyse each and every aspect meticulously to findout whether the case would end in conviction or acquittal
20. In this case, the second respondent Maruthai and his wife and his father (respondents 3 and 4 in Crl.OP.No.30409 of 2019) have denied the allegation that they gave written instructions to transfer the amount https://www.mhc.tn.gov.in/judis/ 16/20 CRL.OP.Nos.25329 and 30409 of 2019 from their accounts to others. Further, the second respondent in his counter has denied the execution of agreement with the second accused. Further, the amount which is said to have been withdrawn from the account of the second respondent and his family members are a very huge amount i.e., Rs.1,28,30,395/-. Under the said circumstances, this court is of the view that the first respondent shall be allowed to investigate the matter.
21. The second respondent, of course, in his counter statement has admitted that only at the instance of the second accused, the said transactions were shown in the income tax return with the hope that the accused would restore the amount, misappropriated from their account as they promised. The Investigating Officer has to investigate on the aforesaid line also. If the petitioners are having materials to show that only as per the written instructions given by the second respondent and his family members, the amounts were transferred to other accounts, the petitioners can very well produce the said materials before the Investigating Officer and if any such materials are produced by them, the Investigating Officer has to investigate the matter on that line also.
22. For the aforesaid reasons, these petitions are dismissed. Consequently, the connected miscellaneous petitions are closed. It is open to the petitioners to produce their materials before the Investigating Officer to substantiate their defence. If any such materials are produced https://www.mhc.tn.gov.in/judis/ 17/20 CRL.OP.Nos.25329 and 30409 of 2019 by the petitioners, the Investigating Officer has to investigate the matter with regard to the said materials also.
17.02.2020 Index: Yes/No Speaking Order: Yes/No gv Note: Issue order copy on 18.02.2020 To
1. The Inspector of Police, District Crime Branch, Ariyalur, Ariyalur District, (Cr.No.3 of 2019)
2. The Public Prosecutor, High Court, Madras.
https://www.mhc.tn.gov.in/judis/ 18/20 CRL.OP.Nos.25329 and 30409 of 2019 P.RAJAMANICKAM.,J.
gv Pre-delivery Orders made in CRL.OP.Nos.25329 and 30409 of 2019 and CRL.MP.Nos.16484 and 13539 of 2019 17.02.2020 https://www.mhc.tn.gov.in/judis/ 19/20 CRL.OP.Nos.25329 and 30409 of 2019 Crl.OP.No.25329 of 2019 and Crl.MP.No.13539 of 2019 P.RAJAMANICKAM.J., This matter has been listed today (29.03.2021) under the caption, “ being mentioned”
2. The learned counsel for the petitioner has submitted that some clarification is required in the order passed by this court in Crl.OP.No.25329 of 2019 dated 17.02.2020.
3. The submissions made by the learned counsel for the petitioner is considered.
4. No clarification need to be given in the said order.
29.03.2021 Vv https://www.mhc.tn.gov.in/judis/ 20/20