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2012 DIGILAW 1668 (MAD)

G. Sheik Mohaideen v. S. Deivendran

2012-03-30

P.R.SHIVAKUMAR

body2012
Order:-A private complaint preferred on the file of the learned Special Judge under TNPID Act, 1988, Madurai by the petitioner herein against the respondent herein for prosecuting and punishing the respondent Deivendran for an alleged offence under section 211 of IPC was taken on file by the said court as C.C.No.46/2010 and the learned special judge under the TNPID Act dismissed the said complaint under section 203 Cr.P.C. by an order dated 06.05.2011. Aggrieved by the said order, the complainant Sheik Mohaideen, has approached this court questioning the correctness and legality of the said order by filing the present criminal revision case. 2. The criminal revision case came up for admission on 30.09.2011. This court entertained a doubt regarding the maintainability of the revision in the light of a provision found in section 11 of the TNPID Act, 1997 providing the remedy of appeal against any order passed by the said court. This court also entertained a doubt as to the maintainability of a private complaint for an offence under section 211 IPC. Notice before admission was issued to the respondent and the respondent entered appearance through counsel. When the matter stood listed for hearing, there was no representation for the respondent. Since this court was of the view that important questions of law are involved in this case, this court availed the services of Mr.Ananthapadmanabhan, advocate as amicus curiae. Accordingly, the arguments advanced by Mr.R.Anand, learned counsel for the revision petitioner and by Mr.Anantha Padmanabhan, learned advocate acting as amicus curiae were heard. The documents were also perused. 3. Before dealing with the abstract questions of law involved in this matter, it shall be convenient to deal with the same, if the facts leading to the filing of the present revision case are narrated in a nutshell: S.Deivendran, the respondent herein lodged a complaint with the Commissioner of Police, Madurai City alleging commission of offences punishable under sections 406, 420 r/w 120-B IPC and under section 5 of the TNPID Act, 1997 against Sheik Mohaideen, the revision petitioner and five other persons (Shanu, Sardar Hussain, Yacoob Hussain, Sivakumar and Mubarak Ali). The allegations made in the complaint were to the effect that the revision petitioner was running a financial establishment by name “PMC Marketing Corporation”, in which he was the Managing Director, whereas his wife Shanu and son Sardar Hussain were directors of the said financial establishment and that Yaccob Hussain was the administrator of the said financial establishment. It was the further allegation made in the complaint that the above said four persons, one Sivakumar and another person Mubarak Ali, conspired together to cheat the public and in pursuance of the conspiracy, Sardar Hussain, Yacoob Hussain, Sivakumar and Mubarak Ali approached the respondent herein on 19.03.2007 after coming to know that he had got Rs.2,00,000/-as his retirement benefit on his retirement and canvassed for the investment of the said amount with the PMC Marketing Corporation luring him with fabulous interest and a representation that investment of a sum of Rs.1,000/- on maturity at the end of three years would have grown into Rs.3,600/- and that the respondent herein was asked to canvass and get depositors promising to pay him commission at Re.1/- per Rs.100 and to make him a Development Officer in the said concern. The further averment made in the complaint is to the effect that believing the said representation made by the above said persons, the respondent herein collected money from others and deposited the same in the office of PMC Marketing Corporation; that for the said amount deposited by the respondent herein, they issued a bogus receipt in yellow paper in the name of PMC Mercantile Private Limited; that the respondent herein made a total deposit of Rs.18,00,000/-, which was made in several installments; that except a small amount paid through ICICI Bank cheque and ATM, no amount was paid either towards interest or towards the repayment of the principal amount of deposit and that the said persons were running a financial establishment and cheated the public, including the respondent herein and also committed an offence punishable under section 5 of the TNPID Act, 1997. The said complaint was forwarded to the Inspector of Police, who registered a case in Crime No.28/2010 on the file of CCB, Madurai City for alleged offences under sections 406, 420 r/w 120-B IPC and under section 5 of Tamil Nadu Protection of Interests of Depositors in Financial Establishment Act, 1997. The matter is under investigation. 4. The said complaint was forwarded to the Inspector of Police, who registered a case in Crime No.28/2010 on the file of CCB, Madurai City for alleged offences under sections 406, 420 r/w 120-B IPC and under section 5 of Tamil Nadu Protection of Interests of Depositors in Financial Establishment Act, 1997. The matter is under investigation. 4. While the matter is under investigation by the police and before any case was instituted on the court either on a police report or on a private complaint, the revision petitioner chose to prefer a private complaint on the file of the TNPID Court, Madurai alleging that a false complaint had been lodged against him and the criminal law has been set in motion based on the false complaint. The revision petitioner filed the said private complaint for prosecuting and punishing the respondent herein for the alleged offence under section 211 IPC. The learned Special Judge under the TNPID Act, who ought to have taken the same as a criminal miscellaneous petition, before taking a decision under section 204 Cr.P.C. regarding the issuance of process and taking a decision as to whether the offence alleged has to be tried as a warrant case or summons case, chose to number the private complaint as a calendar case and thereafter passed an elaborate order dismissing the complaint under section 203 Cr.P.C. The same is under the challenge in the present criminal revision case. 5. Before going into the question of maintainability of such a private complaint on the file of the TNPID Act for an offence under section 211 IPC, this court has to consider a vital legal issue as to whether a revision under section 397 Cr.P.C. against the order of the learned Special Judge of TNPID Court is competent. In this regard reference can be made to section 11 of the TNPID Act, which reads as follows: “11. Appeal.- Any person including the Competent authority, if aggrieved by an order of the Special Court, may appeal to the High Court within thirty days from the date of order.” 6. In this regard reference can be made to section 11 of the TNPID Act, which reads as follows: “11. Appeal.- Any person including the Competent authority, if aggrieved by an order of the Special Court, may appeal to the High Court within thirty days from the date of order.” 6. The TNPID Act is a special enactment and it contains a provision, which is to the effect that any person including the competent authority aggrieved by an order of the special court under the TNPID Act, can prefer an appeal against such an order to the High Court within 30 days from the date of the order. When a question was put to the learned counsel for the petitioner as to how a revision will lie in the light of the above said provision giving a right of appeal to the aggrieved person against the order of the TNPID Court, the learned counsel for the revision petitioner sought the aid of sub section (5) of section 401 Cr.P.C, wherein it has been provided that in case an appeal lies under this code but an application for revision has been made to the High Court by any person and the High Court is satisfied that such an application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interest of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly. Relying on the said provision, learned counsel for the petitioner would submit that if the court is of the view that only an appeal under section 11 of the TNPID Act will lie and the revision is not competent, then the power given to the High Court under section 401(5) can be used and the application for revision can be treated as a petition of appeal. 7. In this regard in support of his contention that a revision is competent, the learned counsel for the petitioner relied on section 6 dealing with the constitution and powers of the special court under TNPID Act and section 13 of the TNPID Act dealing with the powers of special court to try offences under the Act. 7. In this regard in support of his contention that a revision is competent, the learned counsel for the petitioner relied on section 6 dealing with the constitution and powers of the special court under TNPID Act and section 13 of the TNPID Act dealing with the powers of special court to try offences under the Act. Drawing the attention of the court to the said provisions, learned counsel for the petitioner contended that under sub clause (4) of section 6 of the TNPID Act, the special court is empowered to try any offence other than the offence specified in section 5 with which the accused may, under the code of criminal procedure, be charged at the same trial. The said sub clause gives power to the special court while trying an offence under section 5 of the TNPID Act to try any other offence also which can be charged and tried at one and the same trial. The said provision has been referred to by the learned counsel for the petitioner to show that the special court under the TNPID Act is empowered to take cognizance of an offence under section 211 IPC also, besides trying an offence under section 5 of the said Act. 8.The learned counsel for the petitioner has also referred to section 13 of the TNPID Act and submitted that the special court, while trying a person for an offence under section 5 of the Act or any other offence by virtue of section 6(4) of the Act, shall be deemed to be a Magistrate and the procedure prescribed in the code of Criminal Procedure, 1973 for the trial of warrant cases by Magistrates shall be followed. Relying on the said provision, learned counsel for the petitioner would contend that the provision found in section 11 of the TNPID Act shall be confined to orders passed on the civil side and any order passed by the special court on the criminal side shall be deemed to be an order passed by a Magistrate and hence a revision under section 397 Cr.P.C is competent and no appeal shall lie to the High Court under section 11 of the Act. In support of his contention, learned counsel for the petitioner referred to the judgement of a learned single judge of this court in Antony & others vs. The State reported in 2011-2-L.W.(Crl.) 298, wherein it was held that as against a conviction by the special court under the TNPID Act, an appeal shall lie to the High Court only if the substantive sentence of imprisonment is more than seven years imprisonment and that in all other cases, the appeal shall lie to the court of Session. In the said judgment, the learned single judge has referred to several decisions and ultimately held that by virtue of the deeming provision found in section 13 of the TNPID Act and by virtue of the fact that the procedure prescribed for trial of warrant cases has to be followed while trying any offence by the TNPID Court, the general provisions regarding appeal against the conviction or appeal against acquittal found in Criminal Procedure Code alone get attracted. The learned single judge has also held that though section 6 of the TNPID Act dealing with the constitution of the court, says that the government, may with the concurrence of the Chief Justice of High Court, by notification constitute one or more special courts for such areas or such cases as may be specified in the notification in the CADRE OF A DISTRICT AND SESSIONS JUDGE, the Special Judge shall be construed only as a Magistrate while trying an offence under section 5 of the TNPID Act or any other offence tried along with it and that hence the appellate forum against conviction shall be the Sessions Court when the punishment is not more than seven years imprisonment and the appellate forum shall be the High Court in cases where the punishment awarded is more than seven years imprisonment. 9. With due regard to and with due respect to the learned single judge, this court is of the view that a precarious situation will arise if the said view is accepted to be the correct proposition of law and I am not in a position to agree with the said view of the learned single judge and hence I am of the considered view that the said question has to be decided by a Division Bench or a Bench of more Hon’ble Judges of this court. The reasons are as follows: i) Section 6 of TNPID Act, 1997 contemplates constitution of the special court in the cadre of a District and Sessions Judge. When such is the case, the deeming provision found in section 13 of the said Act has to be interpreted to mean the power of the Special Court to take cognizance of the offences without the accused being committed to it and the procedure to be applied for trial of offences. In the general provisions found in the Code of Criminal Procedure regarding the hierarchy of the courts and the courts to which appeal will lie from the court of Magistrate, shall not be read into section 13 of the TNPID Act and the same would not have been the intention of the legislature. ii) The special court under the TNPID Act shall be presided over by a District and Sessions Judge and even a senior judge in the said cadre can be appointed as the special judge under the TNPID Act. If an appeal shall lie to the court of Session, it shall amount to giving power to a judge of equal rank to test the correctness of the order of another judge of equal rank, which shall not have been the intention of the legislature. It may even result in the appeal going to a judge, who is junior to the judge who passed the order as a special judge under the TNPID Act. It cannot be ruled out that an Assistant Judge, who is in a lower cadre, shall also have the power to deal with such an appeal. Such a precarious situation could not have been intended by the legislature. iii) Moreover the provisions of a special law will prevail over the general law. TNPID Act is a special law, which contains a provision under section 11 that any person including the competent authority, if aggrieved by an order of the special court, can appeal to the High Court within 30 days from the date of order. The section prescribes the High Court alone as the appellate authority for dealing with an appeal against any order passed by the special court. The section in its application is not confined to orders passed on the civil side alone. The section prescribes the High Court alone as the appellate authority for dealing with an appeal against any order passed by the special court. The section in its application is not confined to orders passed on the civil side alone. It is general in nature brought to my attention that the scope of section 11 was considered in another case reported in 2011-(1) L.W.361. It so happens that the said decision was mine. When the matter came before me in G.S.Ramarao Gupta & another v. The Competent Authority & District Revenue Officer, Salem & another reported in 2011 CIJ 134 ALJ ; 2011-1-L.W.361, wherein an order passed in an Original Application (on the civil side) by the TNPID Court was sought to be challenged as a criminal appeal, I myself held that simply because the High Court has been prescribed as the appellate forum, the same does not mean that a criminal appeal can be filed against an order passed on the civil side by the TNPID Court and held that only a civil miscellaneous appeal on the file of the High Court would be competent. It has been made clear in the said judgment of mine that the appellate forum against any order of the TNPID Court is the High Court, but an order on the civil side should be challenged by an appeal on the civil side implying that only an order on the criminal side shall be challenged as an appeal on the criminal side of the High Court. The said judgment of mine was not brought to the notice of the learned single judge, who decided the case in Antony & others vs. The State reported in 2011-2-L.W.(Crl.) 298. 10. In the light of the divergent views taken by myself any by Hon’ble Mr.Justice S.Nagamuthu regarding the forum in which an appeal will lie from an order of the TNPID Court passed on the criminal side, I am of the considered view that the issue “whether an appeal shall lie to the High Court under section 11 of the TNPID Act against an order passed by the Special Court under the TNPID Act on the criminal side or such an appeal shall lie to the Court of Session as held by Hon’ble Mr.Justice S.Nagamuthu in Antony & others vs. The State reported in 2011-2-L.W.(Crl.) 298", shall be referred to the decision of a larger bench. Accordingly, the Registry is directed to place the matter before My Lord The Hon’ble The Chief Justice for placing it before a Larger Bench.