IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.12.2009
C O R A M
THE HONOURABLE Mr.JUSTICE V. PERIYA KARUPPIAH
Criminal Original Petition No.13431 of 2008
and
M.P.Nos.1 and 3 of 2008
1.Ketharignanam
2.Ulaganathan .. Petitioners
Versus
N.Sasikumar .. Respondent
Criminal Original Petition filed under Section 482 of Criminal Procedure Code praying to call for the records and quash the criminal proceedings in C.C.No.213 of 2007 on the file of the Judicial Magistrate No.II, Karaikal.
For petitioners ... Mr. Ilanthirayan
for
M/s. Sai Bharath and Ilan.
For Respondent ... Mr.K.Rajasekaran
O R D E R
This petition has been filed by the 1st and 3rd in C.C.No.213 of 2007 before the lower court to quash the proceedings pending against them as not sustainable.
2. The material facts submitted by the petitioners in the petition are as follows:
The respondent as complainant had presented a complaint before the learned Judicial Magistrate II, Karaikal and it was taken on file in C.C.No.213 of 2007 for the alleged offence u/s. 464 and 420 I.P.C as a private complaint. The respondent as the complainant had averred that he was working as a salesman in one M/s. Ram Kumar Agencies from 2001 onwards and he was said to have entrusted 10 cheque leaves to the 2nd petitioner/A3 as a loyal, sincere and faithful worker and A3 did not settle salary dues and incentives to the respondent/complainant and one of the cheques entrusted by the respondent/complainant was handed over by the 1st and 3rd accused to one Mr.Prabakaran, son of Ramalingam who is also arrayed as 4th accused in the above complaint and it was typed by the 4th accused for a sum of Rs.3,80,000/- and the said cheque was dishonoured for the reason "funds insufficient" for which A4 preferred a complaint u/s. 138 of the Negotiable Instruments Act on the file of the Judicial Magistrate No.II, Karaikal and therefore the petitioners namely A1 and A3 have committed the offences u/s. 464 and 420 I.P.C.
3. The said complaint filed by the respondent was against four persons in which A4 is a stranger to other persons and the 1st petitioner/A1 is the proprietrix of Ram Kumar Agencies and A2 is one Naganathan, the Manager of Ram Kumar Agencies. A3 the 2nd petitioner herein is a pharmacist in E.S.I and A4 has nothing to do with the said Ram Kumar Agencies nor any connection with the accused 1 to 3. The complainant who was working as a salesman under the 1st petitioner was drawing his salary every month without fail. His duty was to collect the amounts from various shops for which he misappropriated some of the amounts due to the Ram Kumar Agencies and therefore the 1st petitioner filed a complaint before the Karaikal police station. The respondent/complainant did not pay the amounts collected from M/s. Commercial Traders to the 1st petitioner/A1. The respondent/complainant had given a false complaint only to divert the attention from the issue of the said misappropriation of cash and to escape from the criminal proceedings.
4.The respondent/complainant never handed over the cheque leaves to the petitioner and there is no need to hand over the cheque leaves to A4 Mr.Prabakaran who is a stranger to the petitioners. The allegations made by the respondent in the complaint are completely wrong and they were made only to escape from the clutches of criminal proceedings pending in S.T.R.No.1308 of 2007 on the file of Judicial Magistrate II, Karaikal u/s. 138 of N.I.Act.
5. The respondent had also filed a complaint before the Labour Officer against the 1st petitioner and he did not mention the name of the 2nd petitioner/A3 as the owner of Ram Kumar Agency. Having filed a complaint before the labour court and a complaint against him u/s. 138 of N.I.Act is pending before him, the present complaint filed by the respondent against the petitioner and two others is a false one and it was given in order to escape from the clutches of the criminal proceedings pending against him filed by the accused A4. The alleged offence u/s. 464 I.P.C is not at all made out against the petitioners as they never created any document against the respondent herein. The respondent has also not produced any material to prove the offence u/s. 420 I.P.C. The complaint filed by the respondent/complainant is an abuse of process of law and it has been filed by the respondent for only to harass the petitioners.
6. The allegations in the complaint are vague and no specific allegations or averments against the petitioners for the commencement of such allegations. The dispute between the 1st petitioner and the Commercial Traders is not relevant to the respondent/complainant. Even though the allegations made by the respondent is said to have taken place on 14.12.2005, the respondent has filed a complaint on 05.11.2007 and the delay in lodging the complaint was almost after a period of two years, which would show its falsity. The petitioners/accused 1 and 3 were not connected with Section 138 N I Act proceedings initiated by petitioner/A4. Therefore, there is no question of any criminal liability against them. Therefore, the criminal proceedings in C.C.No.213 of 2007 on the file of Judicial Magistrate II, Karaikal has to be quashed.
7. Heard Mr. Ilanthirayan, learned counsel for the petitioner and Mr.K.Rajasekaran, learned counsel for the respondent.
8. The learned counsel for the petitioners would submit in his argument that the petitioners herein are the accused 1 and 3 before the lower court in C.C.No.213 of 2007 pending on the file of Judicial Magistrate II, Karaikal. The petitioners have sought for quashing the complaint filed against them, since it has no relevance against them for incriminating u/s. 464 I.P.C or u/s. 420 I.P.C. though the allegations made in the complaint. He would further submit that the 1st petitioner/A1 is no doubt the proprietrix of the Ram Kumar Agencies in which the respondent/complainant was working as a salesman and he has launched a complaint before the labour court for the arrears of salary which is said to have not been given by the 1st petitioner/A1 and the 2nd petitioner/A3 is not at all connected with A1 concern and the 2nd petitioner /A3 is working as a pharmacist on E.S.I and therefore there was no connection or access what so ever with the respondent/complainant.
9. No doubt, he has participated in settling the dispute emanated between 1st petitioner concerned with M/s. Commercial Traders in respect of dispute of commission for the goods supplied by the Commercial Traders. He would further submit that the said proceedings before the labour court is pending for adjudication. Therefore, the allegation that the incentives and salary dues have not been paid by the A1/1st petitioner herein and the liability of 2nd petitioner/A3 have to be adjudicated only by the labour court in the said proceedings only, it has to be decided as to whether there was any necessity to proceed criminally also.
10. He would further submit in his argument that the complaint has been given in order to harass the petitioners as to the non payment of salary or incentives would only amount to a civil liability which has to be adjudicated either by the civil court or labour court and not by a criminal forum and that too the 1st petitioner who is the owner of the Ram Kumar Agencies has to answer. He would also submit that it is significant that the complainant did not include the 2nd petitioner/A3 before the labour court. The ingredients of Sec. 420 I.P.C would not apply to the facts of the case as it is purely a non payment of salary and it is also denied by the 1st petitioner.
11. He would further submit in his argument that the alleged handing over of the cheques by the respondent/complainant with the petitioners are not true and the petitioners did not know about Prabakaran who is said to have filed the complaint u/s. 138 N.I.Act against the respondent and it is no way connected with the petitioners.
He would also submit that the complainant had purposely clubbed A4 as one of the accused in this case, in order to give colour that the petitioners have joined with A4 to initiate proceedings u/s. 138 N.I.Act. The said case of the complainant is not sustainable against the petitioners since they did not know the said A4 Prabakaran previously. He would also submit that the complainant had clandestinely included A4 in this case so as to counter the complaint u/s. 138 N.I.Act filed by the said 4th accused.
12. He would also draw the attention of this court to the judgment of Hon'ble Apex court reported in 2008 1 CTC 338 B. Suresh Yadav vs. Sharifa Bee and Another for the principle that the complaint filed by a person for the liability of civil nature cannot be taken up and be proceeded both in civil and criminal side, at the same time. He would also cite a judgment of Hon'ble Apex Court (2000) 2 SCC 636 between G. Sagar Suri v. State of U.P. and others for the proposition that the complaint filed by a person in counter to the complaint u/s.138 N.I.Act already filed and pending is not sustainable. He would also bring it to the notice of the court that the allegations made against the petitioners would not attract the ingredients of Sec 464 or 420 and therefore the said complaint filed u/s. 464 and 420 is not correct. He would submit that it is only an abuse of process of law adopted in order to harass the petitioners and therefore it has to be quashed.
13. Learned counsel for the respondent would submit in his argument that the 2nd petitioner/A3 received monies from the complainant on several occasions and he put his signature as a witness in respect of the agreement entered into between M/s. Ram Kumar Agencies and M/s. Commercial Traders and therefore it cannot be said that he has no connection with the transaction mentioned in the complaint as he was only a pharmacist in E.S.I, Puducherry. He would further submit in his argument that the averments made in the complaint accusing the petitioners requires the examination of witness to substantiate them and therefore, it cannot be decided in this petition that there is no case against the petitioners. He would also submit that the petitioners being the accused 1 and 3 have not come to court with clean hands by disclosing all the facts and therefore the petition cannot be ordered.
14. He would also submit that the delay in filing the complaint will not matter because it was well within the period of limitation. He would again submit in his argument that the complainant was agitating against the petitioners all along and therefore the allegation made against the petitioners that they made the complainant to sign in certain documents, would require evidence and therefore the complaint cannot be quashed u/s. 482 Cr.P.C without trial. He would further submit that the complaint before the labour court had been preferred only at a later part of time and therefore, he did not preferr any complaint prior to it. He would also cite a judgment of Hon'ble Apex court in 2008 (1) Scale 331 between M/s. Suryalakshmi Cotton Mills Ltd vs. M/s. Rajvir Industries Ltd and Ors for the proposition that the completion of other proceedings would give a complaint to be filed by the complainant in future which cannot be a ground for quashing any proceedings. Therefore, he would request the court to dismiss the petition filed by the petitioners.
15. I have given anxious thoughts to the arguments advanced on either side. Petition has been filed by the petitioners/A1 and A3 for quashing the complaint filed by the respondent against them along with two other accused A2 and A4 u/s.420 and 464 I.P.C. For the purpose of better appreciation the ingredients of Sec.420 and 464 are to be extracted. Accordingly Section 420 I.P.C. would run as follows:
"420.Cheating and dishonestly inducing delivery of property: Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
The involvement of petitioners u/s.420 I.P.C which has been categorically mentioned by the complainant in the complaint filed by him was to the effect that the 2nd petitioner/A3 had received monies from the complainant on the promise that he would repay the same for the expenditure of his sister's marriage through the collection of those incentives. He had obtained 10 signed cheques of the complainant. Admittedly the 2nd petitioner Ulaganathan A3 is working as a pharmacist in E.S.I, Puduchery. According to the complainant, he is the actual conductor of M/s. Ram Kumar Agencies to which A1 is the owner. A2 who is not a petitioner herein is said to be the manager. The points stressed by the learned counsel for the respondent that A3 had involved in the transaction of collecting monies from the incentives of the respondent/complainant and had obtained blank cheque leaves from the complainant when he had signed as a witness in a transaction between the A1 company (i.e) Ram Kumar Agencies with M/s.Commercial Traders. No doubt, he has signed in the said compromise entered into between the said parties. But it will not confer any right over the 1st petitioner concerned. It is not the case of the complainant that he signed on behalf of the Ram Kumar Agencies. Therefore, on the basis of the complaint, we cannot see a prima facie case that A3 is conducting the A1 company and had received monies from the complainant collected towards incentives and had promised to give the money at the time of his sister's marriage. It was an admitted fact that he was not made as a party before the labour court. Indisputably, the complaint was launched by the complainant before the lower court for the same cause of action against A1. The collection of incentives and payment of arrears of salary and any amount due from the management of A1 is payable to the complainant should have been decided only by the labour court. The non payment of incentives, even if true, and the non payment of salary will not ripe into any criminal liability against the petitioner/A1 herein.
16. Therefore, we could see that the averments made in the complaint itself did not show any prima facie case to pursue against the accused A1 and A3 u/s. 420 I.P.C. The ingredients of 420 I.P.C is not prima facie established through the averments made in the complaint. At this juncture the judgment of Hon'ble Apex court reported in 2008 (1) CTC 338 in between B. Suresh Yadav v. Sharifa Bee and Another is relevant to decide the point at issue. In paragraph 13 of the said judgment it has been laid down as follows:
"13. For the purpose of establishing the offence of cheating, the complainant is required to show that the accused had fradulent or dishonest intention at the time of making promise or representation. In a case of this nature, it is permissible in law to consider the stand taken by a party in a pending Civil litigation. We do not, however, mean to lay down a law that the liability of a person cannot be both civil and criminal at the same time. But when a stand has been taken in a complaint petition which is contrary to or inconsistent with the stand taken by him in a civil suit, it assumes significance."
On a careful perusal of the said judgment we could see that the allegation made in this complaint contra to the complaint before labour court without including A3 is significant and therefore the complaint given by the respondent against A1 and A3 the petitioners herein u/s. 420 has no legs to stand against them.
17. As regards the averments made against the petitioners in respect of commission of offence u/s. 464 and 34 I.P.C are concerned, we have to see the remaining averments in respect of the commission of such offence. According to the averments in the complaint the 3r accused (i.e) 2nd petitioner, had collected 10 signed cheques of the complainant. The incentives collected by the complainant and the complainant as a loyal and obedient servant of the accused company had issued all the 10 cheque leaves to A3 and A3 in turn had given it to A4 for preparation of the alleged cheque for filing the complaint u/s.138 of N.I.Act. It is an admitted fact that A4 namely Prabakaran had sent notice for dishonouring of cheque to the tune of Rs.3,80,000/- given by the complainant and the complaint filed was taken on file in S.T.R.No.1308/2007 before Judicial Magistrate II, Karaikal. It is also an admitted fact that the present complaint has been filed only after the proceedings u/s. 138 of N.I. Act filed by A4. Therefore, it is no doubt true that the complaint is filed by the complainant including A4 in this case, as a counter blast for the said case.
18. The arguments advanced by the learned counsel for the petitioners would be that the petitioners did not know A3 at all and they are not at all concerned with the transactions held in between the A4 and the complainant. The said fact has to be considered only in the proceedings under Section 138 N.I.Act. The respondent/complainant had also given a reply to the statutory notice issued by A4 before launching the criminal complaint under Section 138 N.I. Act. The merits and demerits of the contentions made in the complaint and in the reply notice should have been considered only in the said complaint. Indisputably, present complaint has been launched by the complainant only after the said 138 N.I. Act proceedings. At this juncture the judgment of Hon'ble Apex court reported in 2000 (2) SCC 636 in between G.Sagar Suri and another vs. State of U.P. and Others is relevant for the present case. The relevant passage would be thus:
"8. Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. 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."
According to the aforesaid judgment it is very clear that the jurisdiction of High court u/s. 482 has to be exercised with great care and at the same time it has to consider the exercise of its jurisdiction when a matter of civil nature had been converted into a criminal offence and the lower courts have failed to disallow such practice. It is further said that the lower courts should have very much exercised care before issuing summons and if it was not followed by the lower court, the High court has to certainly exercise its jurisdiction to set aside such abuse of process.
19. As far as this case is concerned, it has been already prima facie seen that A3 was not shown as the owner of the A1 company and therefore, there can be no necessity to act on behalf of A1 company to obtain cheque leaves from the complainant. In the aforesaid circumstances, it cannot be said that he had handed over the said cheque leaves to a stranger A4 for filing 138 of N.I. Act against the respondent/complainant.
20. These evidence are to be considered as defence in S.T.R.No.1308/2007 before the Judicial Magistrate, No. II, Karaikal as contended by the respondent/complainant. A3 may be one of the witnesses either on the side of the complainant or as a defence witness for the purpose of proving or disproving the evidence produced in the said case.
21. For the appreciation of said allegations made in the complaint the ingredients of Section 464 is necessarily to be extracted. Section 464 would run as follows:
464. Making a false document: A person is said to make a false document of false electronic record:
First-Who dishonestly or fraudulently-
(a) Makes, signs, seals or executes a document or part of a document;
(b) Makes or transmits any electronic record or part of any electronic record;
(c) Affixes any digital signature on any electronic record;
(d) Makes any mark denoting the execution of a document or the authenticity of the digital signature,
With the intention of causing it to be believed that such document or part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or
Secondly- Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or
Thirdly- Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alterations;
The averments made in the complaint as against the petitioners/A1 and A3 do not incriminate them to see a prima facie case for the conduct of trial. The allegations made against the petitioners in the complaint, tend to be of civil nature which have to be decided by competent court for the purpose of deciding the liability. As regards the payment of salary a petition is filed and pending before the labour court in which A3 was not impleaded.
22. In the aforesaid circumstances, the civil liability cannot be made or given a cloak of criminal offence. The judgment of Hon'ble Apex court reported in 2000 (2) SCC 636 to the effect that the criminal proceedings are not a short cut for other remedies is patently seen in the present case.
23. There is no prima facie case found against the petitioners in respect of the offences said to have been committed u/s. 420 and 464 I.P.C. The judgment of Hon'ble Apex court submitted by the learned counsel for the respondent/complainant reported in 2008 1 Scale 331 in between M/s. Suryalakshmi Cotton Mills Ltds vs. M/s. Rajvir Industries Ltd and ors is not applicable to the present facts and circumstances of the case, as the averments of the complaint even if given face value and taken to be correct in its entirety does not constitute any offence u/s. 420 and 464 I.P.C against the petitioners.
24. For the discussion held above this court is of the view that the lower court ought not to have taken the complaint on its file since there was no incriminating allegations or circumstances to take cognizance that the petitioners have committed such offence against the respondent/complainant.
25. Therefore it has become necessary for this court to exercise its jurisdiction u/s. 482 Cr.P.C to prevent the abuse of process of law and to secure the ends of justice and thereby quash the proceedings pending before the lower court as asked for.
26. Accordingly the criminal original petition is allowed. Consequently connected miscellaneous petitions are closed.
30.12.2009
Index: Yes/No
Internet:Yes/No
kpr
To
1. Judicial Magistrate No.II, Karaikal
2. The Public Prosecutor, High Court, Chennai.
V. PERIYA KARUPPIAH,J.
kpr
Pre-Delivery order in
Crl.O.P.No.13431 of 2008
&
M.P.Nos.1 and 3 of 2008
30.12.2009
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