Research › Search › Judgment

Madras High Court · body

2005 DIGILAW 265 (MAD)

S. v. S. Sivanath and others VS K. S. Dhiyanesh

2005-02-14

N.KANNADASAN

body2005
ORDER: The above petition is filed seeking to call for the records pertaining to the proceedings in C.C.No.51 of 2004 on the file of the learned Chief Judicial Magistrate, Madurai and quash the same. 2. The fact leading to the filing of the above petition is set out hereunder: One Sri.K.L.N.Krishnan has established two educational institutions, namely KLN College of Engineering and KLN College of Information and Technology and a society was formed in the name of “K.L.N.Sourashtra College of Engineering Council, Madurai” having its registered office at No.69, South Veli Street, Madurai. The said society was registered under Tamil Nadu Societies Registration Act in the office of the Registrar of Societies, Madurai. The society is governed by separate Bye-laws and Rules. The society consists of General Council as well as the Managing Committee, which is a premier agency. After several years of establishment of the said society, certain disputes have crept in amongst the member of the General Council. A dispute has also crept in about the actual number of members of the Council. 3. Be that as it may, the Managing Committee has purchased certain vehicles for the purpose of the society and the vehicles so purchased are one Toyota Qualis, one Tata Sumo and two Hero Honda two wheelers. While purchasing the same, the vehicles were registered in the name of the office bearers, instead of the Society. However, subsequently, the ownership of the vehicles were altered in the name of the society. In view of the fact that the vehicles were purchased initially in the name of hte members of the Managing Committee, one of the members of the Council has approached the Chief Judicial Magistrate, Madurai with a private complaint under Sec.200, Crl.P.C. seeking suitable directions under Sec.156(3), Crl.P.C. The Chief Judicial Magistrate, Madurai has issued process on the complaint filed by the said individual. Aggrieved against the same, the above quash petition is filed, which was admitted by this Court and an order of interim stay was granted. The defacto complainant has filed an application in Crl.M.P.No.913 of 2005 to vacate the order of stay. When the matter was listed, considering the limited scope involved in the matter, both the learned counsel advanced arguments in the main O.P. itself. 4. The defacto complainant has filed an application in Crl.M.P.No.913 of 2005 to vacate the order of stay. When the matter was listed, considering the limited scope involved in the matter, both the learned counsel advanced arguments in the main O.P. itself. 4. The learned counsel for the petitioners would contend that though the complainant has filed a complaint making various allegations as against the petitioners herein implicating them for the alleged offence under Secs.406, 409, 418 and 34, I.P.C., the Court below has entertained the complaint and issued process for the alleged offence under Sec.406, I.P.C. According to the learned counsel, the learned Chief Judicial Magistrate has issued process in a mechanical manner and without even ascertaining the fact as to whether the complaint has initially approached the concerned police and as to whether any detailed investigation was carried out or not. He further contended that the main allegation in the said complaint is only with regard to the purchase of four vehicles in the name of the individual members of the Managing committee, which were later on transferred in the name of the Society, even on the date of filing of the said complaint, which fact was suppressed in the said complaint. Had the said fact been disclosed in the complaint, the learned Magistrate ought not to have issued the process as no offence said to have been constituted in the light of the allegation. It is also contended that on the very same set of allegations, one of the members of the Council, who is closely associated with the defacto complainant, has also approached the statutory authority constituted for the said purpose, namely the Distract Registrar of Co-operative Society. A detailed enquiry was conducted by the District Registrar under Sec.36 of the Co-operative Societies Act and a report was submitted as early as on 29.11.2002, which proceeds to the effect that the allegations found in the said complaint are false. In the said report, a specific finding is rendered to the effect that though vehicles were purchased in the individual names initially, all such vehicles were registered, indicating the registered office of the society as address of t he individual concerned. In the said report, a specific finding is rendered to the effect that though vehicles were purchased in the individual names initially, all such vehicles were registered, indicating the registered office of the society as address of t he individual concerned. The learned counsel would add that though for the sake of convenience vehicles were initially registered in the name of the individuals of the Managing Committee, in order to avoid any criticism, they have effected necessary changes in respect of the ownership of the said vehicles in the name of the Society. It is also contended that as per the by-laws 36 of the Council, it is specifically mentioned therein that normally all the properties of the Association and there is no express prohibition to purchase any of the property in the name of the individuals of Managing Committee. The learned counsel would further add that the decision to purchase in the name of the individuals were taken by the elected body, who are enjoying the support of the majority of the Council. 5. Per Contra, the learned counsel for the defacto complainant would submit that the power of this Court under Sec.482, Crl.P.C. is very much limited. The learned counsel would add that it should be used very sparingly and cautiously and the High Court should not sift or appreciate the evidence and come to the conclusion that no prima facie case is made out. According to the learned counsel, the learned Magistrate is expected to issue process by looking into the contents of the complaint and if prima facie case is made out, he is left with no other option. In the instant case, the details are furnished in the complaint constitute an offence and as such the learned Magistrate has rightly entertained the complaint on file and if at all the petitioners have got any materials to establish their innocence, they have to prove the same in the trial by letting in evidence. In this connection, he has cited the decisions of the Apex Court, namely,State of Bihar v. Rajendra Agrawalla, 1996 S.C.C. (Crl.) 628, State of Kerala v. O.C.Kuttan, A.I.R. 1999 S.C.1044, Mushtaq Ahmad v. Mohd.Habibur Rehman Faizi and others, A.I.R. 1996 S.C.2982. 6. I have considered the rival contentions of the learned counsel appearing for both sides. 7. In this connection, he has cited the decisions of the Apex Court, namely,State of Bihar v. Rajendra Agrawalla, 1996 S.C.C. (Crl.) 628, State of Kerala v. O.C.Kuttan, A.I.R. 1999 S.C.1044, Mushtaq Ahmad v. Mohd.Habibur Rehman Faizi and others, A.I.R. 1996 S.C.2982. 6. I have considered the rival contentions of the learned counsel appearing for both sides. 7. A perusal of the complaint made by the respondent herein before the Chief Judicial Magistrate proceeds to the effect that the petitioners have violated the bye-law in the matter of purchase of vehicles and thereby committed the offence, namely criminal breach of trust. In the vetry same complaint, a specific reference is made about the petition submitted by one K.R.S.Maneckshaw Babu, who is one of the members of the Council, before the District Registrar (South), and the details about the enquiry conducted by the said Authority. Even though the enquiry conducted by the statutory Authority was referred to, the complainant has not chosen to disclose the final order that was passed subsequently. In fact, the District Registrar, in pursuance of the power conferred upon hum under Sec.36 of the Co-operative Societies Act, has passed a detailed order on 29.11.2002 dismissing the petition as devoid of merit. Even though the learned counsel for the respondent would submit that the said proceedings is the subject matter of connected writ proceedings, it cannot be lost sight of and even though the final order was passed as early as on 29.11.2002, the said fact was completely suppressed in the complaint before the Chief Judicial Magistrate on 23.3.2004. It cannot be suggested that the respondent is totally ignorant of the result of the petition filed by K.R.S Maneckshaw Babu, inasmuch as he has chosen to furnish elaborate details about the petition given by the said individual amd manner in which the enquiry was conducted. Since the said petition was dismissed as devoid of merits, the respondent/defacto complainant has conveniently suppressed the said fact before the learned Magistrate. The above act of the respondent/complainant discloses that he has not approached the learned Chief Judicial Magistrate with clean hands. It is a fundamental principle of jurisprudence that the Courts should not grant relief to a person, who has not approached with clean hands. In the instant case, the suppression of the a bove fact is a deliverate act of the complainant. 8. It is a fundamental principle of jurisprudence that the Courts should not grant relief to a person, who has not approached with clean hands. In the instant case, the suppression of the a bove fact is a deliverate act of the complainant. 8. Apart from the above facts, if the details about the steps initiated by the complainant before preferring the complaint is examined, there is only a casual reference in the complaint to the effect that he has approached the Commissioner of Police, Madurai, who, in turn, has forwarded the complaint to the Inspector of Police, South Gate, Madurai on 15.4.2003, who, in turn, did not conduct investigation properly. The complaint is berefit of particulars as to why the complainant has initially not approached the Inspector of Police, who is having jurisdiction to investigate the matter, but instead straight-away forwarded the complaint by post to the Commissioner of Police. No further details are furnished in the said complaint about the inaction on the part of the Inspector of Police in entertaining the complaint. 9. As regards the argument advanced by the le arned counsel for the respondent that this Court is not expected to appreciate the evidence, when the complainant has chosen to suppress the vital information before the learned Chief Judicial Magistrae, namely, the order passed by the statutory Authority in pursuance of Sec.36 of the Co-operative Societies Act, while presenting the complaint, it cannot be said that this Court should shut its eyes by taking a rigid stand in dealing with the situation of like this. When there is an abuse of judicial process, there is no hard and fast rule for this Court in exercising its inherent powers under Sec.482, Crl.P.C. to look into all materials available on record to render a complete justice. 10. In the light of the above circumstances, the decisions cited by the learned counsel for the respondent, which are cited supra, have no application to decide the case on hand. On the contrary, the Apex Court in its decision reported in Punjab National Bank and others v. Surendra Prasad Sinha, 1993 S.C.C. (Crl.) 149, while interpreting the power of the learned Magistrate for the issue of process under Secs.204, 200 and 190, Crl.P.C., has held that the Courts should not be an instrument in the hands of the private complaint as vendetta to harass the persons needlessly. In this connection, the following observations made by the Apex Court is relevant: “6. It is also salutary to note that judicial process should not be an instrument of oppression or needless harassment. The complaint was laid impleading the Chairman, the Managing Director of the Bank by name and a host of officers. There lies responsibility and duty on the Magistracy to find whether the concerned accused should be legally responsible for the ofence charged for. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded then only process would be issued. At that stage the Court would be circumpsect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance.” Similarly, the Apex Court in its decision reported in Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre, A.I.R. 1988 S.C.709 has held as follows: “Though a case of breach of trust may be both a civil wrong and a criminal offence but there would be certain situations where it would predominantly be a civil wrong and may or may not amount to a criminal offence. The present case is one of that type where, it at all, the facts may constitute a civil wrong and the ingredients of the criminal offences are wanting. Having regard to the relevant documents, including the trust deed as also the correspondence following the creation of the tenancy, the submissions advanced on behalf of the parties, the natural relationship between the settlor and the trustee as mother and son and the fall out in their relationship and the fact that the wife of the co-trustee was no more interested in the tenancy, it must be held that the criminal case should not be continued.” In the light of the above principles, if the case on hand is examined, at best the complainant can proceed against the members of the Managing Committee in a civil forum and the ingredients of the criminal offences are wanting. The above principles of the Apex Court is later on followed in a subsequent decision reported in Aplic Finance Limited v. P.Sadasivan and another, A.I.R. 2001 S.C.1226. 11. The above facts and circumstances, as narrated supra, at any stretch of imagination, does not suggest that the petitioners have committed the offence. In my opinion, it is not a fit case for the petitioenrs to undergo the entire ordeal of trial, since there is no iota of material available to implicate the petitioners in the alleged offence. 12. For the reasons stated above, this criminal original petition is allowed and the proceedings in C.C.No.51 of 2004 on the file of the Chief Judicial Magistrate, Madurai is quashed. Consequently, connected Crl. M.P. are closed.