IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.1.2009 CORAM THE HON'BLE MR.JUSTICE R.REGUPATHI Crl.R.C.No.1630 of 2008 A.S.Prakasam ... Petitioner vs. 1. State by Inspector of Police Law & Order K-4, Anna Nagar Police Station Chennai-40 2. Raja Mani 3. Kandasamy ... Respondents Criminal Revision Case is filed to call for the records in C.C.No.3384 of 2004 on the file of V-th Metropolitan Magistrate Egmore, Chennai and set aside the order dated 16.10.2008 pending disposal of the Criminal Revision Case. For petitioner : Mr.C.Rajan For respondents : Mr.R.Muniyapparaj Government Advocate (Crl.Side) Mr.R.C.Manoharan for R2 & R3 O R D E R
The revision petitioner is the defacto-complainant in C.C.No.3384 of 2004 pending trial for an offence under Sections 448, 384 and 506(ii) of the Indian Penal Code. The complaint has been given on 16.8.2003 and the first respondent Police, on conclusion of the investigation, filed a final report.
2. It is the case of the prosecution that the complainant borrowed money from the accused and was paying Rs.5,000/- each for 10 days. Blank Cheque, pro-note and stamp papers were issued by the petitioner/complainant. After making full settlement of the principal as well as the interest demanded by the accused, the complainant/petitioner requested them to return the documents. On 15.8.2003, the accused/the respondents 2 and 3 trespassed into his residence and demanded the payment of Rs.60,000/- and threatened the complainant with dire consequences, resulting in the complaint dated 16.8.2003. Pending trial of the case, on 8.8.2005 a petition under Section 216 of the Criminal Procedure Code, 1973 was filed by the prosecution and by order impugned dated 16.10.2008, it was dismissed. Aggrieved against the order impugned, the present criminal revision petition has been filed before this Court.
3. The learned counsel appearing for the petitioner submits that on perusal of the deposition of P.W.1 and other materials including the First Information Report, Charge Sheet and statements of the witnesses under Section 161 of the Criminal Procedure Code, not only the offence under Section 384 of the Indian Penal Code, is made out but also offence under Section 4 of the Tamil Nadu Prohibition of Charging Exorbitant Interest Act, 2003 is also made out. The petition under Section 216 of the Criminal Procedure Code, has been rightly filed in time after the complainant/petitioner was examined in the Court. The Special Act will operate in addition to the general provisions of the Indian Penal Code, and though all the allegations, averments and materials are available during the course of the investigation and trial, it was erroneously omitted and the Court also failed to frame charge under the special provisions of the Act. If the materials are available before the Court, the charge can be altered at any time and the petition has been filed in time after the examination of the complainant and the order impugned is erroneous and liable to be set aside.
4. It is further submitted that the general provisions of the Section 384 of the Indian Penal Code, and the Section 4 of the Tamil Nadu Prohibition of Charging Exorbitant Interest Act, 2003 operate on different arenas and unless new charges under the special provisions are framed, great prejudice will be caused to the petitioner.
5. Per contra, the learned counsel appearing for the respondents 2 and 3 submitted that they are accused in the case facing charges for under Sections 448, 384 and 506(ii) of Indian Penal Code, in C.C.No.3384 of 2004. This case has been initiated as a counter case to the case filed by them for the offence punishable under Section 138 of the Negotiable Instrument Act in C.C.No.5781 of 2003 on the file of the same learned Magistrate. In a loan transaction, to clear the liability of Rs.2,00,000/-, the cheque was issued on 11.1.2003 and it was returned un-payable. Therefore, the respondent 2 filed a complaint on 26.2.2003 before the learned Magistrate. After observing all the formalities, the sworn statement was taken on 5.5.2003 and the accused, namely, the revision petitioner appeared before the Court on 1.8.2003.
6. It is submitted that when the complainant himself has appeared as an accused in the cheque bounce case on 1.8.2003, it is all the more impossible for the respondents 2 and 3 to indulge the offence as claimed on 15.8.2003. More over, the respondent 2 is employed in Wheels India Limited and at the relevant point of time on 15.8.2003, he was in the factory. The respondent 3, who is the brother of the respondent 2, was staying away from the place of the offence. All the witnesses in the case are the servants of the petitioner and even the independent witness did not support the case of the prosecution. The case in C.C.No.3384 of 2004 itself has been filed belatedly to stall the proceedings of C.C.No.5781 of 2003 for the cheque bounce case. On the date of the filing of the final report and framing of the charges, the petitioner was fully aware of the penal provisions of the law since he is closely following both the cases and the petition under Section 216 of the Criminal Procedure Code, has been filed with ulterior motive.
7. The learned Government Advocate appearing for the first respondent submits that the trial of both the cases are pending before the learned Magistrate and that the petition under Section 216 of the Criminal Procedure Code, has been filed, since there are materials to substantiate the offence under special enactment.
8. Heard the learned counsel on either side and perused the materials available on record.
9. The cheque in question of the case in C.C.No.5781 of 2003 is dated 11.1.2003. After it was dishonoured, a notice was sent on 20.1.2003 but it was returned unclaimed. The complaint was preferred before the learned Magistrate on 26.2.2003. The complainant appeared as an accused in the case on 1.8.2003. Even after appearance before the Court, the allegation of demanding Exorbitant Interest has not been made. When the proceedings has been initiated and when the case is pending before the learned Magistrate, it is alleged that the occurrence of the case in C.C.No.3384 of 2004 alleged to have taken place. I do not want to go into the merits, demerits of the facts of the case, since it is pending trial before the learned Magistrate. At any rate, such occurrence took place after the proceedings under Section 138 of the Negotiable Instrument Act had commenced before the learned Magistrate. The complaint has been given on 16.8.2003 and the special Act, namely, the Tamil Nadu Prohibition of Charging Exorbitant Interest Act, 2003 came into force on 9.6.2003. Therefore, it must be presumed that the Act was in force even on the date of the filing of the complaint. Neither in the charge sheet nor in the charges framed by the Court, the special enactment has not been included.
10. Section 383 of the Indian Penal Code, defines as follows:
383 Extortion – Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits “extortion”.
11. Sections 3 and 4 of the Exorbitant Interest Act 2003 define as follows:
3. Prohibition of charging exorbitant interest:- No person shall charge exorbitant interest on any loan advanced by him.
4. Penalty:- Notwithstanding anything contained in the Money-lenders Act, whoever contravenes the provisions of section 3 or molests or abets the molestation of any debtor for recovery of any loan shall be punishable with imprisonment for a term which may extend to three years and also with fine which may extend to thirty thousand rupees.
The maximum punishment provided under Section 383 of the Indian Penal Code is to the extent of 3 years or with fine or with both. Maximum punishment provided in both the provisions of law is the same. The complainant has willingly paid the interest and by way of defence in the cheque bouncing case the present case has been filed.
12. The case in C.C.No.3384 of 2004 has been initiated as a counter case to the case in C.C.No.5781 of 2003. While so, pending trial of the case in C.C.No.3384 of 2004, the petition under Section 216 of the Criminal Procedure Code, has been filed before the learned Magistrate. I do not want to give elaborate findings as to the correctness or otherwise of the petition filed under Section 216 of the Criminal Procedure Code. However, on a perusal of the order impugned and other relevant circumstances, I do not find any ground to interfere with the order passed. The learned Magistrate is directed to take up the proceedings in both the cases and conclude the same within a period of 3 months from today.
13. With the observations, the criminal revision case is dismissed. Consequently, connected M.P.Nos.1 and 2 of 2008 are dismissed.
21.1.2009 Index : Yes/No. Internet: Yes/No. lan To 1. Inspector of Police Law & Order K-4, Anna Nagar Police Station Chennai-40 R.REGUPATHI J., lan Crl.R.C.No.1630 of 2008 21.1.2009