IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.01.2010 CORAM: THE HON'BLE MR.JUSTICE C.T.SELVAM Crl.OP.No.1615 of 2007 and M.P. No. 1 of 2007 & M.P. No. 1 of 2009 V.R. Eswaramoorthy ... Petitioner Vs. State rep. by The Inspector of Police District Crime Branch, Erode ... Respondent PRAYER : Criminal Original Petition filed under Section 482 Cr.P.C. to call for the records in C.C. No. 361 of 2005 on the file of the learned Judicial Magistrate, Perundurai and quash the same. For Petitioner : Mr. N. Manokaran For Respondent : Mr. N. Kumanan Govt. Advocate (Crl.Side) O R D E R
The petition has been filed to quash the proceedings in C.C. No. 361 of 2005 on the file of the Judicial Magistrate, Perundurai. The petitioner herein is the 1st accused in the said case. The investigation in Crime No. 65 of 2004 has been done by the Erode Crime Branch and the charge sheet has also been filed for the alleged offences punishable under Sections 409 and 420 IPC r/w Section 34 IPC. Five persons stand charged, of whom, the petitioner is the 1st accused. The resultant case is C.C. No. 361 of 2005 before the Judicial Magistrate, Perundurai.
2. The contention of the petitioner is that one Loganathan and his wife Latha, being the Directors of Suriya Chakra Spinning Mills Private Limited approached him for hand loan and the petitioner has paid them a sum of Rs. 1,25,000/-, against which, he received a post dated cheque dated 02.04.2004. When the petitioner presented the cheque for collection on 02.04.2004, the same was returned unpaid. The petitioner has filed a private complaint before the learned Judicial Magistrate No. I, Erode on 27.05.2004 for an offence punishable under Section 138 of Negotiable Instruments Act, which had been taken on file in C.C. No. 602 of 2006. The petitioner further submits that the accused in the said case entered appearance and thereafter filed a complaint with the Inspector of Police, District Crime Branch, Erode, alleging offences under Sections 409 and 420 IPC, which had been registered in Crime No. 65 of 2004 on the file of the respondent police. The petitioner also states that he was manhandled by the respondent police and he filed a complaint in this regard in Crime No. 885 of 2004 against the complainant and two other police constables and it is only because thereof the present case in Crime No. 65 of 2004 has been registered against him.
3. The learned counsel for the petitioner submits that the present complaint, which is sought to be quashed, has been filed only towards defeating the action initiated by the petitioner against the complainant. He further contended that the inherent power of quashing the proceedings at the initial stage can be exercised when the allegations made in the final report, even if taken at their face value and accepted in their entirety do not prima facie disclose the commission of an offence or where the allegations made in the final report and the evidence relied on in support of the same do not disclose the commission of any offence. The learned counsel placed reliance on several decisions, which will be adverted to hereinafter. The grounds urged by the learned counsel are those spelt out by the Hon’ble Apex Court in Bhajan Lal Vs. State of Hayana, 1992 (AIR SCW 237:1992 Supp(1) SCC 335:AIR 1992 SC 604:1992 Crl. LJ 527).
4. In response, Mr. S. Jayakumar, learned counsel appearing on behalf of the Intervenor / defacto complainant submits that this Court would not act merely on what is informed in the charge sheet, but also would look into the statement of the witnesses. The charge sheet and the statement should be taken as a whole and therefrom, it would be clear that prima facie case stands made out against the other accused as well as against this petitioner. Learned counsel took this Court through the statement of the witnesses and particularly that of the defacto complainant which informs of several transactions between the defacto complainant and the other accused persons, in the course whereof, several cheques issued by the complainant, some signed in blank have been in the hands of the accused persons. An agreement had been entered into on 06.05.2002 between the defacto complainant and other accused persons in Crime No. 65 of 2004 wherein it had been agreed that any action taken by the accused on the strength of filled up / blank cheques would not bind the defacto complainant. Learned counsel for the Intervenor further submits that when the statutory notice was issued by the petitioner herein towards moving action under Section 138 of Negotiable Instruments Act, it was then the defacto complainant came to know that the agreement reached on 06.05.2002 had been breached and that this petitioner had joined hands with other accused in preferring a false complaint against the defacto complainant for an offence punishable under Section 138 of Negotiable Instruments Act. Learned counsel submits that the defacto complainant, prior to receipt of notice issued by the petitioner herein, did not know who he was and that he had no dealings whatsoever with the petitioner herein. Learned counsel states that the specific case of the complainant is that towards obtaining wrongful gain, the other accused utilizing the services of the petitioner, who was in hand and glove with them had caused a false prosecution under Section 138 of Negotiable Instruments Act. It is contended that when, on prima facie consideration, offences would seem to be committed, this Court would not exercise its inherent power under Section 482 Cr.P.C. to quash proceedings.
5. I have considered the rival submissions.
6. Turning to the decisions relied upon by the learned counsel for the petitioner, we find that in Sunil Kumar Vs. M/s. Escorts Yamaha Motors Ltd ( AIR 2000 SC 27), the Apex Court, upholding the quash of proceedings by a Division Bench of Delhi High Court relating to the alleged offences under Sections 420, 406 and 468 IPC and accepting the contention raised by the learned counsel therein, observed as follows:
“that the assertions made in the FIR even taken on face value do not satisfy the ingredients of the offence alleged to have been made and on the other hand it manifestly indicates that the complainant has instituted the criminal proceedings with an ulterior motive for wreaking vengeance and to pre-empt the filing of the criminal complaint against him under Section 138 of the Negotiable Instruments Act and, therefore, the High Court rightly came to the conclusion that allowing the criminal proceedings to continue would result in manifest injustice and as such quashed the FIR, and this Court, therefore, would not be justified in interfering with the same in exercise of power under Article 136 of the Constitution” and that “issuance of process should not be allowed to be an instruments of oppression or needless harassment. Responsibilities and duties on the Magistracy lie in finding out whether the alleged accused would be legally responsible for the offence charged for. The Court at that stage could be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration lest it would be an instrument in the hands of the private complaint as vendetta to harass the person needlessly.”
The said decision was followed by this Court in A. Ganesh Vs. K.K. Moorthy (Crl.O.P. No. 30980 of 2005 dated 13.03.2006).
7. This Court is of the considered opinion that the authorities cited by the learned counsel for the petitioner cannot be held as propounding an omnibus proposition that no complaint for commission of offences can be preferred once the accused has filed a complaint under Section 138 of Negotiable Instruments Act. It is seen from the decision of the Hon’ble Apex Court that the decision thereon turned on the facts and circumstances pertaining to a particular case, which clearly reflected that the complainant case which stood quashed was malafide and intended only to defeat the action under Section 138 of Negotiable Instruments Act moved against the respective complainants. In the instant case, we find that there is an agreement between some of the accused persons and the defacto complainant, which, on the face of it, informs that the accused persons shall not put to use the cheques held by them. According to the complaint, the other accused persons have sought to make wrongful gain by misusing one of the cheques held by them contrary to the agreement and in this exercise, the petitioner herein was also in hand and glove with other accused. In such circumstances, as rightly contended by Mr. S. Jayakumar, learned counsel appearing for the Intervenor / defacto complainant, this Court cannot, at this stage, appreciate whether the petitioner herein, in fact, shared the intention of commission of offences along with other accused. Mr. S. Jayakumar further submits that it was only upon receipt of notice under Section 138 of Negotiable Instruments Act case, initiated against him, that the defacto complainant / Intervenor came to know of the offences committed by the accused and under such circumstances, no malafide can be attributed to him in filing the complaint on 30.07.2004.
8. This Court is of the considered view on perusal of the charge sheet and statement of witnesses and on appreciation of the rival contentions that a prima facie case appears to have been made out against the accused persons and as such is the case, it would not be proper to exercise inherent power under Section 482 Cr.P.C. to quash Criminal Proceedings at the threshold. Consequently, the petition shall stand dismissed. The connected miscellaneous petitions are closed.
1. Judicial Magistrate,
2. The Inspector of Police
District Crime Branch,
3. The Public Prosecutor,