Research › Search › Judgment

Madras High Court · body

2008 DIGILAW 4678 (MAD)

Mohan Nair & Another v. M. S. Margasagayam

2008-12-16

K.MOHAN RAM

body2008
Judgment :- 1. With consent of the learned counsel on either side the Criminal Original Petition itself is taken up for final disposal. 2. The petitioners herein are the first and second accused in C.C.No.13578 of 2008 on the file of the learned X Metropolitan Magistrate, Egmore, Chennai. The respondent herein filed a complaint under Section 200 Cr.P.C. against the petitioners herein and one Thiru.Jayagopal and the complaint has been taken on file for the offence under Sections 406 and 420 IPC and process has been ordered to be issued by the learned X Metropolitan Magistrate, Egmore, Chennai. On summons being served and after getting the certified copies of the relevant documents the petitioners have filed the above Criminal Original Petition seeking to quash all further proceedings in C.C.No.13578 of 2008. Before adverting to the contentions put forth by the learned counsel on either side, it is necessary to set-out in detail the allegations contained in the complaint and the sworn statement of the complainant for better appreciation of the case and the contentions put forth by the learned counsel for the petitioners. 3. In the complaint it is alleged as under:- “The Complainant father having a property at Maduravoyal and it was leased to the Bharat Petroleum Corporation Ltd. as a Tenant for a period of 20 years and further another 20 years. After the Lease period over the said Bharat Petroleum Corporation Ltd, is not vacated the place. Instead of vacating the place the First and Second accused with the help of Third Accused who is the sub-dealer of the said bunk without having any valuable records. The Complainant further submits he had filed a civil suit before the Honble Sub Court for quit and delivered vacant possession of the suit property and the damages. The said Court orders that the First and Second Accused Company to pay a sum of Rs.2,40,000/- (Rupees Two Lakhs and Forty Thousand only) to the Complainant and his brothers from 6. 2003. But the Accused 1 to 3 jointly colluded with each other and suppressed the real facts by way of not informing the above said order of payment to the Higher Officials. The Accused 1 and 2 are wrongfully and unlawfully helped the 3rd accused to trespass the complainant land the Petrol Bunk income was totally utilized by the 3rd accused. But the Accused 1 to 3 jointly colluded with each other and suppressed the real facts by way of not informing the above said order of payment to the Higher Officials. The Accused 1 and 2 are wrongfully and unlawfully helped the 3rd accused to trespass the complainant land the Petrol Bunk income was totally utilized by the 3rd accused. The Accused 1 to 3 are dishonestly, fradunantly and cleverly and cheated the Complainant and also received excess amount by way of retail business and entire money is misappropriated by the Third Accused with the help of the Accused 1 and 2. The Complainant further submits that the 1st and 2nd accused may help the 3rd accused by way of getting money from the Bharat Petroleum Corporation Ltd. The Court order amount of Rs.2,40,000/- may receive from the Company by way of illegal methods by the 3rd accused with the help of accused 1 and 2 and they are committed a criminal breach of trust. The 3rd accused with the help of the accused 1 and 2 cheated the Bharat Petroleum Corporation Ltd, Chennai for their own benefits. The Complainant further submits as on date the 1st and 2nd accused company are liable to pay a sum of Rs.12,00,000/- (Rupees Twelve Lakhs only) to the Complainant and his brothers. But till date any amount is not received by the Complainant. The Complainant as got a severe doubt that the accused 1 to 3 may utilize the above said amount for their own benefits. Being a sub-dealer the 3rd accused has not produce any documents before the competent authority. The accused 1 to 3 are liable to punish under the Sec 406 & 420 IPC. Hence the Complaint. The Complainant further submits after the lease period is over the 3rd accused unlawfully trespassed the Complainant land and doing business with the help of accused 1 and 2.” The complaint is dated 23.07.2008 and the complaint has been filed on the same date. The Sworn Statement of the complainant has been recorded on 28.07.2008 and the same reads as under:- On the aforesaid allegations contained in the complaint and the sworn statement, the learned X Metropolitan Magistrate, Egmore, Chennai, has taken cognizance of the complaint and had ordered issue of process. The Sworn Statement of the complainant has been recorded on 28.07.2008 and the same reads as under:- On the aforesaid allegations contained in the complaint and the sworn statement, the learned X Metropolitan Magistrate, Egmore, Chennai, has taken cognizance of the complaint and had ordered issue of process. The summons to the petitioners herein had been issued on 06.08.2008 calling upon them to appear before the said Court on the fourth day of August 2008 at 10.00 a.m. 4. Learned counsel for the petitioners made the following submissions:- The respondent is one of the co-owners of the property where Bharat Petroleum Corporation Limited (hereinafter called as “the Corporation”) has put up a Bunk for retail sale of petroleum products. The Corporation became a tenant of the property situated in Survey No.123/2 of Maduravoyal Village under a lease deed executed in April 1963 by M.K. Sivaraman Mudaliar, Mr. M.K. Jayavelu Mudaliar and Mrs. M.C. Kanniammal in respect of the said property; the complainant and others have filed O.S.No.128 of 2003 before the Sub Court, Poonamallee, against the Corporation for delivery of vacant possession of the said property and for a decree for a sum of Rs.2,40,000/- as damages for use and occupation of the suit property; the Corporation has filed its written statement but on 310. 2006, O.S.No.128 of 2003 was decreed exparte. In January 2007, a execution petition was filed by the complainant and others to execute the exparte decree passed in O.S.No.128 of 2003; on 11.06.2007, the exparte decree dated 310. 2006 passed in O.S.No.128 of 2003, was set-aside as per the order passed in I.A.No.147 of 2007; the complainant has filed the complaint on 23.07.2008 suppressing the setting aside of the exparte decree. 5. Learned counsel for the petitioners submitted that the very filing of the complaint itself is a clear abuse of process of the Court. 2006 passed in O.S.No.128 of 2003, was set-aside as per the order passed in I.A.No.147 of 2007; the complainant has filed the complaint on 23.07.2008 suppressing the setting aside of the exparte decree. 5. Learned counsel for the petitioners submitted that the very filing of the complaint itself is a clear abuse of process of the Court. Learned counsel for the petitioners further submitted that in the complaint itself the complainant/respondent has admitted that the Corporation is in possession of the property and a suit has been filed to quit and deliver vacant possession and for damages and as such the allegation that accused 1 and 2 are wrongfully and unlawfully helped the third accused to trespass the complainants land and the petrol bunk income was totally utilized by the third accused is prima facie not only mutually contradictory but false; in the complaint it is alleged that the said Court orders with the first and second accused company to pay a sum of Rs.2,40,000/-(Rupees Two Lakhs Forty Thousand only) to the complainant and his brothers from 6. 2003 is misleading since the Corporation has not been arrayed as an accused but the first and second accused have been falsely implicated in their individual capacity. .6. Learned counsel for the petitioners further submitted that the following allegations viz., the Accused 1 to 3 are dishonestly, fraudulently and cleverly and cheated the Complainant and also received excess amount by way of retail business and entire money is misappropriated by the Third Accused with the help of the Accused 1 and 2 is not only bereft of details but is false to the knowledge of the complainant; except using the words dishonestly, fraudulently, cheated and committed criminal breach of trust, the Complainant has not alleged the facts constituting the ingredients of the offences under Sections 406 and 420 IPC; therefore even prima facie no case is made out under Sections 406 and 420 IPC; it is alleged in the complaint that as on date the first and second accused-Company are liable to pay the sum of Rs.12,00,000/-to the complainant and his brothers, but the first and second accused are individuals but not the company and as such the complaint ought not to have been entertained as against the petitioners herein. 7. 7. In fine the sum and substance of the contention of the learned counsel for the petitioners is that the allegations contained in the complaint itself show that the entire dispute is of a civil nature but no offence has been made out to warrant the issue of summons but the learned Magistrate, as a result of non-application of judicial mind to the materials placed on record had taken cognizance of the complaint and ordered issue of process without realising that the issue of summons is a very serious act and it ought not to be done in a casual and cavalier manner and also by overlooking the fact that the tenant of the property belonging to the complainant is admittedly a Government owned Public Sector Undertaking. 8. Learned counsel for the petitioners submitted that since the complaint has been filed suppressing the material facts just to harass the petitioners, it is not only sufficient that the complaint should be quashed but also exemplary cost should be awarded for filing such frivolous and vexatious complaint. 9. On the aforesaid submissions made by the learned counsel for the petitioners, the learned counsel for the respondent was heard, who submitted that due to improper advice and misguidance, the complainant/respondent has filed the complaint. Realizing that it is not possible to repel the contentions put forth by the learned counsel for the petitioners the learned counsel for the respondent submitted that the complainant who is innocent and ignorant of the legal niceties may be pardoned if this Court is inclined to quash the proceedings. .10. I have carefully considered the said submissions made by the learned counsel on either side, perused the allegations contained in the complaint and the sworn statement of the complainant and the certified copy of the order dated 11.06.2007 and the A Diary extract in O.S.No.128 of 2003 on the file of the Sub Court, Poonamallee. At the outset it has to be pointed out that the fact that the Corporation continues to be in possession of the Petroleum out-let situated in Survey No.123/2 of Maduravoyal Village, belonging to the complainants family, the pendency of the suit in O.S.No.128 of 2003 on the file of the Sub Court, Poonamallee, the order dated 11.06.2007 passed in I.A.No.147 of 2007 and the setting aside of the exparte decree dated 310. 2007 passed in the suit are all admitted by the learned counsel for the respondent and none of the aforesaid facts are disputed. The authenticity of the A Diary extract has not been questioned by the learned counsel for the respondent and it being an order of the Court can be looked into by this Court at this stage even though it has not yet become legal evidence in the case. This document will fall under the category of a document of an unimpeachable character of sterling quality. The complainant knowing fully well that the exparte decree passed in O.S.No.128 of 2003 by the Sub Court, Poonamallee, has been set-aside on 11.06.2007 as aforesaid had intentionally and with a mala fide intention has filed the complaint by suppressing the same on 23.07.2008 and by falsely stating as if the sum of Rs.2,40,000/- was liable to be paid by the Corporation and the first and second accused. Therefore it is crystal clear that the complainant by filing the vexatious complaint has abused the process of the Court. .11. Further neither the allegations contained in the complaint nor in the sworn statement of the complainant reveal the ingredients of the offence under Sections 406 and 420 IPC. There is absolutely no allegation as to how the complainant was cheated by the accused in the case. It is not stated as to how the complainant was deceived or fraudulently or dishonestly induced to deliver any property to the accused. None of the ingredients of cheating as defined in Section 415 of the IPC have been made out from the allegations contained in the complaint and in the sworn statement of the complainant. Similarly it is not alleged in the complaint as to when the complainant entrusted any property with the accused or any dominion over any property was entrusted to the accused and how the accused dishonestly misappropriated or converted to their own use that property. Similarly the other ingredients of the offence of criminal breach of trust as defined under Section 405 IPC have also not been made out. Similarly the other ingredients of the offence of criminal breach of trust as defined under Section 405 IPC have also not been made out. But unfortunately the learned Magistrate without applying her judicial mind to the allegations contained in the complaint and the sworn statement of the complainant and without keeping in mind the ingredients of the aforesaid offences has in a mechanical and cavalier manner taken the complaint on file and directed issue of process to the accused. 12. As pointed out above, even accepting on face value the entire allegations of the complaint to be true, no offence under Sections 406 or 420 IPC is made out. 13. At this juncture it will be useful to refer to a decision of the Apex Court reported in (2006) 6 Supreme Court Cases 736 (INDIAN OIL CORPN. v. NEPC INDIA LTD.). In the said decision in paragraphs 12 to 14 the Apex Court has laid down the principles to be followed while exercising jurisdiction under Section 482 Cr.P.C., which reads as follows:- “12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few—Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre (1998) 1 SCC 692 : 1988 SCC (Cri) 234, State of Haryana v. Bhajan Lal (1992 Supp (1) SCC 335) : 1992 SCC (Cri) 426, Rupan Deol Bajaj v. Kanwar Pal Singh Gill (1995) 6 SCC 194 : 1995 SCC (Cri) 1059, Central Bureau of Investigation v. Duncans Agro Industries Ltd. (1996) 5 SCC 591 : 1996 SCC (Cri) 1045, State of Bihar v. Rajendra Agrawalla (1996) 8 SCC 164 : 1996 SCC (Cri) 628, Rajesh Bajaj v. State NCT of Delhi (1999) 3 SCC 259 : 1999 SCC (Cri) 401, Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltdd. (2000) 3 SCC 269 : 2000 SCC (Cri) 615, Hridaya Ranjan Prasad Verma v. State of Bihar (2000) 4 SCC 168 : 2000 SCC (Cri) 786, M. Krishnan v. Vijay Singh (2001) 8 SCC 645 : 2002 SCC (Cri) 19 and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque (2005) 1 SCC 122 : 2005 SCC (Cri) 283. (2000) 3 SCC 269 : 2000 SCC (Cri) 615, Hridaya Ranjan Prasad Verma v. State of Bihar (2000) 4 SCC 168 : 2000 SCC (Cri) 786, M. Krishnan v. Vijay Singh (2001) 8 SCC 645 : 2002 SCC (Cri) 19 and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque (2005) 1 SCC 122 : 2005 SCC (Cri) 283. The principles, relevant to our purpose are: (i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint. (ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides / malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. (iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. .(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence. .(v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. .(v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not. 13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. In G. Sagar Suri v. State of U.P. (2000) 2 SCC 636 : 2000 SCC (Cri) 513. this Court observed: (SCC p. 643, para 8). “It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.” 14. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.” 14. While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under Section 250 Cr.P.C. more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant.” 14. In the considered view of this Court the aforesaid decision squarely applies to the facts of this case. The case on hand is essentially of a civil nature and the same has been given a cloak of criminal offence. As pointed out by the Apex Court, Criminal proceedings are not a short cut of other remedies available in law; before issuing process a criminal court has to exercise a great deal of caution; for the accused it is a serious matter, but unfortunately the learned X Metropolitan Magistrate, Egmore, Chennai, has given a go-by to the aforesaid principles laid down by the Honble Apex Court and has taken the complaint to file without application of mind in a mechanical and cavalier manner. Such conduct on the part of the learned X Metropolitan Magistrate, Egmore, Chennai, is condemnable. 15. In the aforesaid decision the Honble Apex Court has pointed out that to curb unnecessary prosecutions and harassment of innocent parties, one positive step that can be taken by the Courts, is to exercise their power under Section 250 Cr.P.C. more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. This Court wonders as to whether the learned X Metropolitan Magistrate, Egmore, Chennai, is atleast aware of the aforesaid decision of the Apex Court. 16. This Court wonders as to whether the learned X Metropolitan Magistrate, Egmore, Chennai, is atleast aware of the aforesaid decision of the Apex Court. 16. The complaint does not make out any case much less prima facie case, a condition precedent to set criminal law in motion. The Magistrate without adverting whether the allegation in the complaint prima facie makes out an offence charged for, obviously, in a mechanical manner, issued process against all the accused. The Magistrate should be circumspect 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 to harass the persons needlessly. The Magistracy should keep in mind that vindication 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. Considered from any angle this Court finds that the respondent had abused the process and laid complaint against all the accused without any prima facie case but only to harass them for vendetta. 17. Therefore, for the reasons stated above, this Court is of the considered view that any further continuance of the proceedings in C.C.No.13578 of 2008 on the file of the X Metropolitan Magistrate, Egmore, Chennai, will amount to clear abuse of process of Court and hence all further proceedings in C.C.No.13578 of 2008 are hereby quashed not only against the petitioners herein but also as against the third accused in that case though he has not preferred a quash petition before this Court. .18. As laid down by the aforesaid decision of the Apex Court while no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable. In this case, the complainant has not only initiated the criminal proceeding being fully aware that the criminal proceedings are fully unwarranted and his remedy lies only in a civil law, but has suppressed the material fact viz., the exparte decree passed on 310. In this case, the complainant has not only initiated the criminal proceeding being fully aware that the criminal proceedings are fully unwarranted and his remedy lies only in a civil law, but has suppressed the material fact viz., the exparte decree passed on 310. 2006 in O.S.No.128 of 2003 was set-aside by an order dated 11.06.2007 passed in I.A.No.147 of 2007 by the Sub Court, Poonamallee, and the complaint has been filed on 23.07.2008 that is after the exparte decree was set-aside. Once the exparte decree has been set-aside there was no liability on the part of the Corporation to pay the sum of Rs.2,40,000/- as claimed by the complainant. It is not averred in the complaint or in the sworn statement as to how the accused, who are not parties to the suit, are liable to pay the said amount. Therefore for having filed such a frivolous and vexatious complaint just to wreck vengeance on the accused the above quash petition has to be allowed with exemplary costs. Accordingly the above Criminal Original Petition is allowed with exemplary costs of Rs.25,000/-(Rupees twenty-five thousand only) to be paid by the respondent herein to the petitioners herein in equal proportion and the same shall be paid on or before 06.01.2009. Post this matter for reporting compliance on 07.01.2009. 19. It is pertinent to point out that on an earlier occasion on coming to know about the indiscriminate manner in which the private complaints filed under Section 156 (3) Cr.P.C. and Section 200 Cr.P.C. are being entertained by the Judicial Magistrates / Metropolitan Magistrates in this State and after calling for details with reference to pendency of such cases from the Registry and on a perusal of the details and the nature of the cases in which process has been directed to be issued by the various Courts, Mr. Justice R. Regupathi, by a common order dated 21.08.2008 passed in Crl.O.P.Nos.15451 and 15981 of 2008 has come down heavily on such Magistrates and one among them is the learned X Metropolitan Magistrate, Egmore, Chennai. Justice R. Regupathi, by a common order dated 21.08.2008 passed in Crl.O.P.Nos.15451 and 15981 of 2008 has come down heavily on such Magistrates and one among them is the learned X Metropolitan Magistrate, Egmore, Chennai. The learned X Metropolitan Magistrate, Egmore, Chennai, alone had taken cognizance of 10,738 cases for the alleged offence under Sections 406 and 420 IPC and all those cases were withdrawn from that Court to the file of this Court and the following direction was also issued namely:- “(iv) All records including Vigilance reports may also be placed before the Hon ble the Chief Justice for being taking appropriate departmental action against the Magistrates concerned in particular III, X, XVII and XVIII Metropolitan Magistrates, Chennai and Judicial Magistrate-III, Coimbatore and Judicial Magistrate, Paramakudi, Ramnad;” But subsequent to the aforesaid directions also some instances have come to the notice of this Court that the learned X Metropolitan Magistrate, Egmore, Chennai, is continuing to adopt the same procedure. If complaints of this nature, which are purely civil in nature, frivolous and vexatious, are taken on file indiscriminately without application of mind, the litigating public will not only be put to harassment but will lose faith in the very judicial system itself. Hence this Court feels that stringent action should be taken against the learned X Metropolitan Magistrate, Egmore, Chennai, who has taken the complaint on file in this case. 20. Registry is directed to place the entire records and this order before My Lord The Honble The Chief Justice for taking appropriate departmental action against the learned X Metropolitan Magistrate, Egmore, Chennai.