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2003 DIGILAW 605 (MAD)

A. Venkatramani v. V. Arunagiri

2003-04-04

V.KANAGARAJ

body2003
Judgment :- The petitioner, who is an accused in C.C.No.5452 of 2002 pending on the file of the Court of XI Metropolitan Magistrate, Saidapet, Chennai, has come forward to file this criminal original petition praying to call for the said records and quash the same. 2. The averments of the petition are that the respondent herein filed a private complaint before the Court of XXIII Metropolitan Magistrate on 6.12.2001, which was referred to under Section 156(3) Cr.P.C. to the Crime Branch, Chennai, which subsequently got registered in Crime No.972 of 2001 for the alleged offences punishable under Sections 406, 409 and 500 I.P.C.; that after investigation, the Police referred the complaint as civil in nature and the copy of the notice was served on the respondent on 4.6.2002; that thereafter, the respondent filed a protest petition before the Court of XI Metropolitan Magistrate and on such protest petition, objections were sought for from the Police and on perusal of the materials, the learned Magistrate has taken up the complaint on file and having taken cognizance of the matter, issued process to the petitioner for hearing on 6.9.2002 and again on 4.10.2002; that on 4.10.2002, on the endorsement made by the postal authorities, "ID", the learned Magistrate issued non-bailable warrants and on coming to know of the same, the petitioner surrendered before the Magistrate on 17.10.2002 and on such surrender, the NBW was recalled; that on 12.11.2002, the said case was posted for furnishing copies and since the petitioner could not appear on the said day, the case was posted on 13.11.2002 for compliance of furnishing copies; that thereafter, the case got adjourned to 19.11.2002 for recording the evidence of the respondent. 3. 3. It is further submitted that the respondent has filed the complaint against the petitioner for the offence punishable under Sections 406, 409 and 500 I.P.C. alleging that the respondent held several posts in Ram Kaashyap Group of Companies; that his share of profits to the tune of Rs.3 crores as on October 2002 was not paid; that the petitioner/accused did not fulfill his promise by giving 25% share in Ram Kaashyap Group of Companies; that he is a shareholder in Ram Kaashyap Investments Limited and the petitioner diverted the funds from this Company; that he also misappropriated the money of the company; that the expenditures were exaggerated; that shares worth Rs.15 lakhs were allotted to one Venkata Krishna without any payment; that the petitioner has given a wrong picture about him to the prospective employers; that such statements are defamatory in nature and hence the petitioner committed breach of trust as an individual and as a promoter he has misappropriated the money of Ram Kaashyap Investment Limited. 4. When the above matter was taken up for consideration in the presence of the learned counsel for the petitioner and the respondent as party in person, they both were heard. 5. During arguments, the learned counsel for the petitioner would submit that for recovery of a sum of more than Rs.2 crores from the petitioner, the respondent has already filed a Civil Suit No.323 of 2002 on the file of this Court and when he filed Original Applications in O.A.Nos.336 and 423 of 2002 in the said suit respectively praying to pass an order of interim injunction restraining the Managing Director of The Ram Kashyap Group Companies from terminating him from the services of Consultant of the said company along with the repossession of the car bearing Registration No.TN-07-1109 which is under his care and control and for an order of interim injunction directing the defendants 1 and 2 therein to pay the consultancy fees to him as per the agreement dated 15.1.1996, this Court, by its order dated 29.11.2002 has dismissed both the said applications. The learned counsel for the petitioner would submit a copy of the said order of this Court and would submit that having failed in his attempt before the civil forum of this Court, the respondent has initiated criminal proceedings against the petitioner. 6. The learned counsel for the petitioner would submit a copy of the said order of this Court and would submit that having failed in his attempt before the civil forum of this Court, the respondent has initiated criminal proceedings against the petitioner. 6. The learned counsel for the petitioner would then rely on a judgment of the Apex Court delivered in HAZARI LAL GUPTA vs. RAMESHWAR PRASAD AND ANOTHER reported in AIR 1972 SC 484 wherein the Honourable Apex Court while considering the appeals arising from the dismissal of petitions filed under Section 561-A of the Criminal Procedure Code, 1898 (which is now Section 482 in the amended Cr.P.C.) has held: "In exercising jurisdiction under S.561-A of the Criminal Procedure Code, the High Court can quash proceedings i there is no legal evidence or if there is any impediment to the institution or continuance of proceedings but the High Court does not ordinarily enquire as to whether the evidence is `reliable or not'. Where again, investigation into the circumstances of an alleged cognizable offence is carried on under the provisions of the Criminal Procedure Code, the High Court does not interfere with such investigation because it would then be impeding investigation and jurisdiction of statutory authorities to exercise power in accordance with the provisions of the Criminal Procedure Code." Citing the above judgment, the learned counsel for the petitioner would pray for the relief extracted supra. 7. On the part of the respondent also, three judgments would be cited, the first one delivered by the Honourable Apex Court in KAMALADEVI AGARWAL vs. STATE OF W.B. AND OTHERS reported in (2002) 1 SCC 555 . It is a case wherein the High Court quashed the criminal proceedings on ground that between the same parties with the same averments, a civil suit is pending before the High Court and the Honourable Apex Court reversing the said findings of the High Court has held: "The High Court was not justified in quashing the proceedings initiated by the appellant against the respondents. Criminal prosecution cannot be thwarted at the initial stage merely because civil proceedings are also pending. There is no substance in the argument that as the civil suit was pending in the High Court, the Magistrate was not justified to proceed with the criminal case either in law or on the basis of propriety. Criminal prosecution cannot be thwarted at the initial stage merely because civil proceedings are also pending. There is no substance in the argument that as the civil suit was pending in the High Court, the Magistrate was not justified to proceed with the criminal case either in law or on the basis of propriety. Criminal cases have to be proceeded with in accordance with the procedure as prescribed under the Code of Criminal Procedure and the pendency of a civil action in a different court even though higher in status and authority, cannot be made a basis for quashing of the proceedings. The nature and scope of civil and criminal proceedings and the standard of proof required in both matters is different and distinct...." 8. The next judgment cited by the respondent is one delivered by the Honourable Apex Court in M.S.SHERIFF AND ANOTHER VS. STATE OF MADRAS reported in AIR 1954 SC 397 wherein it is held that `as between the civil and the criminal proceedings, the criminal matters should be given precedence.' 9. The last judgment cited by the respondent is one delivered by the Honourable Apex Court in CHANNAVEERA GOWDA vs. SANNE GOWDA AND OTHERS reported in 2001 Supreme Court Criminal Rulings 315. It is a case wherein on the basis of an enquiry by the Investigating Officer on a final form being filed, the complainant filed the protest petition and the Magistrate treating the same as a complaint and after examining the complaint and two witnesses, took cognizance of the matte and directed issuance of process. In those circumstances, the accused persons moved the High Court under Section 482 Cr.P.C. and the High Court interfered with the order of the Magistrate and quashed the same. In this case, the Honourable Apex Court has held: "A bare look at the impugned order would indicate that the High Court has tried to decide the matter as the trial Court assessing the evidence which obviously is not permissible within the jurisdiction conferred under Section 482 Cr.P.C. which ought tobe exercised only when the Court comes to the conclusion that otherwise there would be an abuse of the Court. In the aforesaid premise, we set aside the impugned order of the High Court and direct that the Magistrate would proceed with the criminal proceedings as expeditiously as possible." 10. In the aforesaid premise, we set aside the impugned order of the High Court and direct that the Magistrate would proceed with the criminal proceedings as expeditiously as possible." 10. In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for the petitioner and the respondent as a party in person, what comes to be known is that it is a case taken on file on a private complaint filed by the respondent herein and the Magistrate taking cognizance of the same ordered issuance of process to the petitioner, who is shown as the accused therein and has also fixed the date of hearing framing the charge for an offence punishable under Sections 406, 409 and 500 IPC. 11. Whether it is on facts or within the meaning of the judgments, the relevant portions of which are extracted above, when the Magistrate has taken cognizance of a case on its file, unless the same has been found not maintainable on ground of illegalities, it is undesirable on the part of the High Court to cause interference into the trial proceeding undertaken by the trial Court in exercise of the inherent powers conferred on the Highs Court by Section 482 of the Cr.P.C. and therefore it is not desirable to cause such interference as it has been sought for by the petitioner. 12. Neither the points raised in the above criminal original petition nor the position of law on the subject permit this Court to cause any interference into the trial Court taking cognizance of the complaint of the respondent in C.C.No.5452 of 2002 on the file of the Court of XI Metropolitan Magistrate, Saidapet, Chennai and in these circumstances, the only decision that could be arrived at is to decline to quash the proceeding as it is prayed for by the petitioner and hence the following order: In result, the above criminal original petition does not merit acceptance and the same is dismissed. Consequently, Crl.M.P.Nos.11853 and 11854 of 2002 are dismissed and Crl.M.P.No.483 of 2003 is closed.