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2005 DIGILAW 1044 (MAD)

M. Ravi & Others v. Elumalai Chettiar

2005-07-11

S.SARDAR ZACKRIA HUSSAIN

body2005
Judgment :- The petitioners are the accused 1 to 13 in C.C.No.15 of 2003 on the file of the Judicial Magistrate No.II, Kancheepuram. The petitioners have filed this original petition to quash the proceedings in C.C.No.15 of 2003. 2. The financial company in the name "T.M.C. Finance & Investments" was started by the first petitioner taking the other petitioners as partners of the firm. The petitioners 2 to 13/accused 2 to 13 are not having any role to play in the finance company and only they contributed the capital, which is mainly run by the first petitioner. The respondent borrowed money from the finance company, but when the respondent failed to repay the said amount, the first petitioner has filed a private complaint under Section 138 of Negotiable Instruments Act, which was taken on file in C.C.No.128 of 2001, since the cheque issued by the respondent for Rs.5,64,000/- was dishonoured when it was put for collection for insufficiency of funds and the case is pending for trial. 3. The respondent filed a private complaint in the same Court in 2002 that the cheque, on the strength of which C.C.No.128 of 2001 has been filed, was in fact, issued to some other transaction to the first petitioner and that the cheque has been filled up for higher amount. As such, the first petitioner by forging the cheque, has filed the said case and as such, cheated the respondent. The said complaint has been filed not only against the first petitioner, but also against the petitioners 2 to 13. Even in the said complaint, it is specifically mentioned that only the first petitioner is the Managing Partner and the other petitioners are merely partners. But, however, it is stated in the complaint given by the respondent that the petitioners 2 to 13 were members of criminal conspiracy for such forgery and as such, the petitioners 2 to 13 are liable under Section 109 I.P.C. It is taken on file in C.C.No.15 of 2003 under Sections 406, 465 and 468 I.P.C. 4. According to the petitioners, as per Section 195 of Criminal Procedure Code, if any offence is committed under Section 463 I.P.C. or its collateral offences, the same can be taken on file by any Court only on the complaint lodged by the Court before which that document has been filed. According to the petitioners, as per Section 195 of Criminal Procedure Code, if any offence is committed under Section 463 I.P.C. or its collateral offences, the same can be taken on file by any Court only on the complaint lodged by the Court before which that document has been filed. But without report being lodged by the Court, the complaint in C.C.No.15 of 2003 has been taken on file and as such, there is material irregularity. Even as per the averment in the complaint in C.C.No.128 of 2001, it is only the first petitioner, who filed the said complaint and not the petitioners 2 to 13. So, arraying the petitioners 2 to 13 as accused 2 to 13 that they are members of criminal conspiracy is an abuse of process of law. On the said ground, the proceedings in C.C.No.15 of 2003 is sought to be quashed. 5. Heard the learned counsel for the petitioners. The learned counsel for the respondent absent even though sufficient opportunity was given. 6. The learned counsel for the petitioners advanced argument that he has filed this original petition to quash the proceedings in C.C.No.15 of 2003 against the petitioners. He further submitted that the case taken on file in C.C.No.15 of 2003 against all the petitioners in respect of the offences alleged to have been committed under Sections 406, 465 and 468 I.P.C. stating that all the petitioners conspired together in filling up the higher amount in the cheque admittedly given by the respondent for some other transaction to the first petitioner and on the dishonour of which the private complaint preferred by the first petitioner against the respondent is taken on file in C.C.No.128 of 2001, in that no report has been filed by the said Court that such offences have been committed in respect of the dishonoured cheque. There is very much force in the argument so advanced. 7. As per Section 195(b)(ii) of Criminal Procedure Code, No Court shall take cognizance of any offence described in Section 463 of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court except on the complaint in writing of that Court. 7. As per Section 195(b)(ii) of Criminal Procedure Code, No Court shall take cognizance of any offence described in Section 463 of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court except on the complaint in writing of that Court. As rightly argued by the learned counsel for the petitioners, admittedly, the first petitioner is the Managing Partner and the petitioners 2 to 13 are merely partners in the company and the complaint in C.C.No.128 of 2001 also filed in respect of the dishonoured cheque for Rs.5,64,000/- by the first petitioner alone against the respondent wherein the said cheque has been filed. 8. If it is the case of the respondent that in the cheque which was given by him to the first petitioner for some other transaction, higher amount has been filled up, for which purpose all the petitioners conspired together and committed criminal breach of trust in forging the said cheque, then it is for the Court concerned to make a report accordingly, which can be on recording finding as such in disposing the case in C.C.No.128 of 2001. As rightly argued that just to delay the proceedings in C.C.No.128 of 2001 and as a counter-blast to that case, the respondent has filed complaint, which has been taken on file in C.C.No.15 of 2003 against all the petitioners, despite the fact, C.C.No.128 of 2001 has been filed only by the first petitioner as the Managing Partner of the finance company, in which the petitioners 2 to 13 are merely partners. It follows, the complaint taken on file in C.C.No.15 of 2003 being premature and improper within the meaning of Section 195 Cr.P.C., the proceedings in C.C.No.15 of 2003 taken against the petitioners 1 to 13/accused 1 to 13 have to be quashed by allowing this Original Petition. 9. In the result, this petition is allowed. The proceedings in C.C.No.15 of 2003 on the file of the Judicial Magistrate No.II, Kancheepuram against the petitioners 1 to 13/accused 1 to 13 is quashed. Consequently, the petition Crl.M.P.No.3973 of 2003 is closed.