A. Venkatramani vs V. Arunagiri

V. Kanagaraj, J.—The petitioner, who is an accused in C.C. No. 5452 of 2002 pending on the file of the Court of XI Metropolitan

Magistrate, Saidapet, Chennai, has come forward to file this criminal original petition praying to call for the said records and quash the same.

The averments of the petition are that the respondent herein filed a private complaint before the Court of XXIII Metropolitan Magistrate on

6.12.2001, which was referred to u/s 156(3) Cr.P.C. to the Crime Branch, Chennai, which subsequently got registered in Crime No. 972 of 2001

for the alleged offences punishable under Sections 406, 409 and 500 I.P.C.; that after investigation, the Police referred the complaint as civil in

nature and the copy of the notice was served on the respondent on 4.6.2002; that thereafter, the respondent filed a protest petition before the

Court of XI Metropolitan Magistrate and on such protest petition, objections were sought for from the Police and on perusal of the materials, the

learned Magistrate has taken up the complaint on file and having taken cognizance of the matter, issued process to the petitioner for hearing on

6.9.2002 and again on 4.10.2002; that on 4.10.2002, on the endorsement made by the postal authorities, ""ID"", the learned Magistrate issued non-

bailable warrants and on coming to know of the same, the petitioner surrendered before the Magistrate on 17.10.2002 and on such surrender, the

NBW was recalled; that on 12.11.2002, the said case was posted for furnishing copies and since the petitioner could not appear on the said day,

the case was posted on 13.11.2002 for compliance of furnishing copies; that thereafter, the case got adjourned to 19.11.2002 for recording the

evidence of the respondent.

It is further submitted that the respondent has filed the complaint against the petitioner for the offence punishable under Sections 406, 409 and

500 I.P.C. alleging that the respondent held several posts in Ram Kaashyap Group of Companies; that his share of profits to the tune of Rs. 3

crores as on October 2002 was not paid; that the petitioner/accused did not fulfill his promise by giving 25% share in Ram Kaashyap Group of

Companies; that he is a shareholder in Ram Kaashyap Investments Limited and the petitioner diverted the funds from this Company; that he also

misappropriated the money of the company; that the expenditures were exaggerated; that shares worth Rs. 15 lakhs were allotted to one Venkata

Krishna without any payment; that the petitioner has given a wrong picture about him to the prospective employers; that such statements are

defamatory in nature and hence the petitioner committed breach of trust as an individual and as a promoter he has misappropriated the money of

Ram Kaashyap Investment Limited.

When the above matter was taken up for consideration in the presence of the learned counsel for the petitioner and the respondent as party in

person, they both were heard.

During arguments, the learned counsel for the petitioner would submit that for recovery of a sum of more than Rs. 2 crores from the petitioner,

the respondent has already filed a Civil Suit No. 323 of 2002 on the file of this Court and when he filed Original Applications in O.A. Nos. 336

and 423 of 2002 in the said suit respectively praying to pass an order of interim injunction restraining the Managing Director of The Ram Kashyap

Group Companies from terminating him from the services of Consultant of the said company along with the repossession of the car bearing

Registration No. TN-07-1109 which is under his care and control and for an order of interim injunction directing the defendants 1 and 2 therein to

pay the consultancy fees to him as per the agreement dated 15.1.1996, this Court, by its order dated 29.11.2002 has dismissed both the said

applications. The learned counsel for the petitioner would submit a copy of the said order of this Court and would submit that having failed in his

attempt before the civil forum of this Court, the respondent has initiated criminal proceedings against the petitioner.

The learned counsel for the petitioner would then rely on a judgment of the Apex Court delivered in Hazari Lal Gupta Vs. Rameshwar Prasad

and Another, etc., wherein the Honourable Apex Court while considering the appeals arising from the dismissal of petitions filed u/s 561-A of the

Criminal Procedure Code, 1898 (which is now Section 482 in the amended Cr.P.C.) has held:

In exercising jurisdiction under S.561-A of the Criminal Procedure Code, the High Court can quash proceedings there is no legal evidence or if

there is any impediment to the institution or continuance of proceedings but the High Court does not ordinarily enquire as to whether the evidence

is `reliable or not''. Where again, investigation into the circumstances of an alleged cognizable offence is carried on under the provisions of the

Criminal Procedure Code, the High Court does not interfere with such investigation because it would then be impeding investigation and

jurisdiction of statutory authorities to exercise power in accordance with the provisions of the Criminal Procedure Code.

Citing the above judgment, the learned counsel for the petitioner would pray for the relief extracted supra.

On the part of the respondent also, three judgments would be cited, the first one delivered by the Honourable Apex Court in Kamaladevi

Agarwal Vs. State of West Bengal and Others, It is a case wherein the High Court quashed the criminal proceedings on ground that between the

same parties with the same averments, a civil suit is pending before the High Court and the Honourable Apex Court reversing the said findings of

the High Court has held:

The High Court was not justified in quashing the proceedings initiated by the appellant against the respondents. Criminal prosecution cannot be

thwarted at the initial stage merely because civil proceedings are also pending. There is no substance in the argument that as the civil suit was

pending in the High Court, the Magistrate was not justified to proceed with the criminal case either in law or on the basis of propriety. Criminal

cases have to be proceeded with in accordance with the procedure as prescribed under the Code of Criminal Procedure and the pendency of a

civil action in a different court even though higher in status and authority, cannot be made a basis for quashing of the proceedings. The nature and

scope of civil and criminal proceedings and the standard of proof required in both matters is different and distinct....

The next judgment cited by the respondent is one delivered by the Honourable Apex Court in M.S. Sheriff Vs. The State of Madras and

Others, wherein it is held that `as between the civil and the criminal proceedings, the criminal matters should be given precedence.''

The last judgment cited by the respondent is one delivered by the Honourable Apex Court in CHANNAVEERA GOWDA vs. SANNE

GOWDA AND OTHERS reported in 2001 SCC R 315. It is a case wherein on the basis of an enquiry by the Investigating Officer on a final form

being filed, the complainant filed the protest petition and the Magistrate treating the same as a complaint and after examining the complaint and two

witnesses, took cognizance of the matte and directed issuance of process. In those circumstances, the accused persons moved the High Court u/s

482 Cr.P.C. and the High Court interfered with the order of the Magistrate and quashed the same. In this case, the Honourable Apex Court has

held:

A bare look at the impugned order would indicate that the High Court has tried to decide the matter as the trial Court assessing the evidence

which obviously is not permissible within the jurisdiction conferred u/s 482 Cr.P.C. which ought tobe exercised only when the Court comes to the

conclusion that otherwise there would be an abuse of the Court. In the aforesaid premise, we set aside the impugned order of the High Court and

direct that the Magistrate would proceed with the criminal proceedings as expeditiously as possible.

In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for the petitioner

and the respondent as a party in person, what comes to be known is that it is a case taken on file on a private complaint filed by the respondent

herein and the Magistrate taking cognizance of the same ordered issuance of process to the petitioner, who is shown as the accused therein and

has also fixed the date of hearing framing the charge for an offence punishable under Sections 406, 409 and 500 IPC.

Whether it is on facts or within the meaning of the judgments, the relevant portions of which are extracted above, when the Magistrate has

taken cognizance of a case on its file, unless the same has been found not maintainable on ground of illegalities, it is undesirable on the part of the

High Court to cause interference into the trial proceeding undertaken by the trial Court in exercise of the inherent powers conferred on the Highs

Court by Section 482 of the Cr.P.C. and therefore it is not desirable to cause such interference as it has been sought for by the petitioner.

Neither the points raised in the above criminal original petition nor the position of law on the subject permit this Court to cause any interference

into the trial Court taking cognizance of the complaint of the respondent in C.C. No. 5452 of 2002 on the file of the Court of XI Metropolitan

Magistrate, Saidapet, Chennai and in these circumstances, the only decision that could be arrived at is to decline to quash the proceeding as it is

prayed for by the petitioner and hence the following order:

In result, the above criminal original petition does not merit acceptance and the same is dismissed.

Consequently, Crl.M.P. Nos. 11853 and 11854 of 2002 are dismissed and Crl.M.P. No. 483 of 2003 is closed.