IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21/08/2003
CORAM
THE HONOURABLE MR.JUSTICE V.KANAGARAJ
CRIMINAL ORIGINAL PETITION No.12672 OF 2003
AND
CRL.M.P.Nos.4321 AND 4322 OF 2003.
V.Jaganathan ... Petitioner
-Vs-
State, by
The Inspector of Police,
Central Crime Branch,
Egmore, Chennai. ... Respondent
Criminal Original Petition filed under Section 482 of the Code of
Criminal Procedure for the relief as stated therein.
For petitioner : Mr.S.Sudarsan
For respondent : Mr.A.N.Thambidurai,
Govt.Advocate(crl.side)
For intervener : Mr.T.L.L.Ramakrishnan
:O R D E R
The above criminal original petition has been filed praying to
set aside the order dated 1.4.2003 made in Crl.M.P.No.689 of 2003 in
C.C.No.1100 of 1999 to recall the petitioner as P.W.2, which is pending on the
file of the Court of XI Metropolitan Magistrate, Saidapet, Chennai.
2. On a perusal of the materials placed on record, upon
hearing the learned counsel for the petitioner, learned counsel for the
interver and the learned Government Advocate on the criminal side, it comes to
be known that the petitioner is the Director of M/s.Ramaniam Real Estates
Private Limited, Gandhi Nagar, Adyar, Chennai and he is P.W.2 in the said
case, which is registered on a complaint lodged by one Mohan against his
sister’s daughter by name Maragatha Mani along with two other persons for the
offences punishable under Sections 466,471 and 474 IPC. The petitioner would
submit that the said Maragathamani sold her lands along with two cents
belonging to the said Mohan as his power agent to the customers of the
petitioner and the sale deeds were also executed by the said Maragathamani;
that all of a sudden, after the buildings were constructed, problems started
to galore and the said Mohan issued a lawyer’s notice on 28.11.1995 to the
petitioner and the said Maragatha Mani stating that the said Maragathamani
forged the power of attorney and sold the lands without his consent; that the
said notice was replied by the petitioner on 21.12.1995 and subsequently
another notice was also issued by the said Mohan on 5.6.1 997, which was also
replied by them on 14.6.1997; that in the meantime, the said Mohan, has lodged
a complaint before the respondent herein, who issued a notice to the
petitioner to attend an enquiry on 15.6 .1996; that on receipt of the said
police notice under Sections 91 and 160 Cr.P.C., he sent a reply through
registered post on 17.6.1996 narrating all the incidents; that earlier, on
15.2.1996, the complainant received all the relevant papers from his Advocate.
3. The petitioner would further submit that thereafter he was
not examined and no statement was given by him orally to anybody earlier or
subsequent to 17.6.1996, the one which he sent in writing; that thereafter
also, the Inspector of Police sent notices to come to his Office for giving
statement and on no occasion, he has recorded any statement other than the one
given by him in writing; that thereafter, he received summons in the above
matter from Court to depose evidence as prosecution witness and the Police,
who came to serve the summons informed him to come and depose what he has
given in writing earlier on 17.6.1996; that on various occasions, the case was
adjourned and finally he was examined in chief in January, 2003; that during
the course of examination, the Public Prosecutor put certain questions, as if
he stated earlier, which he denied and thereafter the Public Prosecutor
treated him hostile and sought permission to cross-examine him and the Court
granted leave.
4. The petitioner would further submit that during
crossexamination, the Public Prosecutor showed a statement to him, said to
have been recorded on 24.1.1996 which is factually incorrect and no such
statement was given by him on 24.1.1996 and this can be proved beyond doubt by
records in the form of police notice sent by the same investigating officer to
him subsequently and therefore he deposed that the statement was not given by
him and denied the same; that the defence counsel also cross-examined him on
6.2.2003 and his evidence was closed on 6.2.2003 and the case is adjourned for
investigating officer’s evidence.
5. The petitioner would further submit that on 22.4.2003, he
received summons from the Court of XI Metropolitan Magistrate to appear for
cross-examination on 2.5.203 and to give evidence; that on verification, it
was found that the said Mohan, on whose complaint, the case was registered,
filed a petition to engage a Lawyer to assist the prosecution and filed
Crl.M.P.No.539 of 2003 praying to reopen the investigation and direct the
Additional Deputy Commissionr of Police to investigate various aspects raised
therein, seize the original power of attorney from P.W.2 and send the same for
handwriting expert for his opinion and to file additional charge sheet array
this petitioner as accused and Crl.M.P.No.689 of 2003 to recall this
petitioner for cross-examination and the learned Magistrate, without notice to
this petitioner, also conducted the enquiry and dismissed the Crl.M.P.No.539
of 2003 and allowed the Crl.M.P.No.689 of 2003, by the order dated 1 .4.2003.
6. The petitioner would further submit that the above
petition is not maintainable and it is a clear abuse of process of law; that
the above applications are filed with a view to harass him by unnecessarily
dragging on to criminal courts and thereby causing mental agony and forcing
him to come to terms; that he has not adduced evidence that he is possessed of
original power of attorney; that the charge itself is baseless since the very
case is that the power of attorney is forged and without the original power of
attorney, the alleged forged document, the charges were framed and now he is
compelled to produce a document which is not in his custody and depose
evidence on the basis of the statement which is not given by him; that after
the evidence is over and that too, when the prosecution has treated him as
hostile witness, he is unable to understand as to what sort of evidence, the
prosecution is expecting from him as their witness; that there is no scope for
further cross-examination according to the sweet wish of the Public Prosecutor
and hence the petition is filed by the counsel assisting the Public Prosecutor
just to harass him by dragging him to criminal courts and made him wait by way
of sadist satisfaction. On such grounds, the petitioner would pray for the
relief extracted supra.
7. During arguments, the learned counsel appearing on behalf
of the petitioner would only repeat the facts and circumstances brought forth
in his application with no new fact or circumstance nor any law pertaining to
the subject argued and hence tracing the same is not only going to be a
repetition of the facts extracted supra but also will be a time consuming and
wasteful exercise.
8. Though no petition has been filed to implead the
defactocomplainant as the party to the above proceedings,
Mr.T.L.L.Ramakrishnan, Advocate appeared on behalf of the defacto-complainant
as intervener and resisted the above petition stating that the property of the
defacto-complainant is sold by forging the documents and hence he has to get
it ascertained as to with whom the original power of attorney is and hence he
has filed a petition before the Court below under Section 311 Cr.P.C. and the
same was allowed by the Court below in full consideration of the facts and
circumstances of the case and the above petition filed by P.W.2 is without
merit and would pray to dismiss the above criminal original petition.
9. On the part of the learned Government Advocate on the
criminal appearing for the prosecution, he would affirm the order of the Court
below and would pray to dismiss the above criminal original petition.
10. In consideration of the facts pleaded, having regard to
the materials placed on record and upon hearing the learned counsel for all
parties, it could be assessed that the defacto-complainant in the case in hand
has filed a petition before the trial Court under Section 3 11 of the Cr.P.C.
to re-call P.W.2 for further cross-examination by the prosecution towards
establishing the possession of the original power of attorney said to have
been parted with by one Maragathamani, the accused therein. The case of the
defacto-complainant is that the accused Maragatha Mani, who is none other than
his sister’s daughter, while selling her lands in favour of the petitioner
herein, who is a builder to an extent of 13,000 sq.ft., she has also sold two
cents of land belonging to the defacto-complainant, which according to the
defacto-complainant was forging his sig nature in the documents, which could
be ascertained by causing production of the original power of attorney, which
is said to have been given in favour of the said Maragathamani and according
to the defacto-complainant, the said Maragathamani has handed over the said
power of attorney in original to this petitioner/P.W.2.
11. P.W.1 is the defacto-complainant. According to the
defactocomplainant, regarding the possession of the original power of attorney
said to have been given to this petitioner/P.W.2 by the accused Maragathamani,
no proper evidence has been elicited by the prosecution at the time of
cross-examination of P.W.2 as a hostile witness. On the part of the
petitioner/P.W.2, he would firmly deny not only before this Court but also
during the time of his examination before the trial Court regarding the
original power of attorney being handed over with him by the said
Maragathamani and he has specifically mentioned not only in the
chief-examination but also in his hostile evidence extracted by the APP in
cross-examination and there is no question of any ambiguity or inconsistency
or doubtful circumstance created so far as the petitioner’s evidence before
the trial Court regarding the possession of the original power of attorney by
him is concerned. Therefore, it is not proper on the part of the
defacto-complainant in seeking to re-examine P.W.2 since absolutely no purpose
is going to be served by such examination of P.W.2 again since his evidence
regarding the subject in hand, even at the time of his original
crossexamination, is definite.
12. It is relevant to point out that what statements have
been recorded by the prosecution under Section 161 Cr.P.C. have been properly
and elaborately elicited in the cross-examination of the petitioner/ P.W.2 and
the hostile witness P.W.2 would deny them. Now citing some notice and reply
exchanged by parties and stating that in the said notice, it is indicated that
the original power of attorney was parted only with this P.W.2, the
defacto-complainant has come forward to file the petition under Section 311
Cr.P.C. before the Court below.
13. At this juncture, it is essential on the part of this
Court to go into the question `whether such an application could be filed on
the part of the defacto-complainant in his individual capacity, particularly
in view of the fact that P.W.2 is not a party to the proceedings but only
examined as a witness’ and `whether it is proper on the part of the court
below to have permitted the defacto-complainant to file the petition
regardless of the fact that the case of the prosecution is conducted by the
State?’.
14. The petitioner may be the defacto-complainant, but it is
entirely the State, which has taken up the responsibility of projecting the
case of the prosecution and anything the defacto-complainant wants to project
before the Court, it should be only through the agency which is projecting his
case i.e. the State through the police and the Public Prosecutor and hence
according to the procedures established by law particularly under Cr.P.C., the
defacto-complainant could only assist the prosecution, if permitted by the
Court and he has absolutely no independent locus standi either to file a
petition excluding the Public Prosecutor who is prosecuting the case or would
he have any say with the Court regarding anything that he wants to bring home.
Therefore, entertaining the petition filed by the defacto-complainant itself
is irregular, no mention need be necessary in processing the same and passing
orders on such application filed by the defactocomplainant by himself and
therefore it is only proper, in the above circumstances, to hold that at the
outset, entertaining the petition filed by the defacto-complainant herein
before the trial Court in the manner aforementioned under Section 311 Cr.P.C.
itself is improper and not maintainable in law needless to mention about the
fate of the enquiry held and the orders passed by the Court below.
15. No irregularity or inconsistency has taken place in the
manner that the subject matter has been dealt with by the APP at the time of
the examination of P.W.2, which is perfect and no inconsistency or
irregularity writs large so as to entertain the application of such sort in
the name of re-examination which is out of the scope of the case projected and
further since the application of that sort filed by the
intervener/defacto-complainant cannot be maintained, this Court, for these
reasons, is left with no choice but to set aside the order passed by the Court
below.
In result,
(i)the above criminal original petition is allowed.
(ii)The order dated 1.4.2003 made in Crl.M.P.No.689 of 2003 in C.C. No.1100
of 1999 by the Court of XI Metropolitan Magistrate, Saidapet, Chennai is
hereby set aside.
Consequently, Crl.M.P.Nos.4321 and 4322 of 2003 are also
dismissed.
Index: Yes
Internet: Yes
Rao
To
1.The XI Metropolitan Magistrate,
Saidapet,
Chennai.
2.The Inspector of Police,
Central Crime Branch,
Egmore, Chennai.
3.The Public Prosecutor,
High Court,
Madras.