O.M. Kannappan vs Basheer Ahamed

Arunachalam, J.—The Petitioner is the accused in C.C. No. 38 of 1985 on the file of the J.F.C.M., Tirupattur, N. Arcot District. He is

being prosecuted on a private complaint lodged by the Respondent on 21-7-1977 for alleged offences u/s 418, 477-A and 468, I.P.C.

A few facts need narration. The Petitioner was the Village Headman of Udayandram village, for several years. In the course of his duties, it is

alleged that he was collecting land revenue from the Respondent and others, more than what was due for each fasli. It appears, according to the

complaint, that whatever monies were demanded were being paid by the complainant to the Petitioner. When the complainant/Respondent in or

about 1975 obtained the patta pass book, he was surprised to note that the Petitioner had been collecting higher amounts as land revenue, than

what was actually due. It is also the case of the Respondent that the actual amount collected by the Petitioner was not deposited into the

Government Treasury and by this act, he had been cheated. Though no particular reference is made, it is the case of the complainant that certain

documents had been falsified and the revenue records forged, in the process, by the Petitioner with a view to cheat the Respondent. The complaint

itself states that some receipts have been misplaced by the Respondent and relevant records would be produced during trial. Initially, the

Respondent filed a private complaint on 12-7-1976 before the S.D.J.M., Tirupattur. The then Magistrate directed investigation by the concerned

police by forwarding the complaint u/s 156(3), Code of Criminal Procedure The Investigating Police registered the said complaint as Crime No.

632 of 1976 and after investigation, filed a referred charge-sheet on 19-7-1977 before the trial Magistrate. This report would indicate that there

was no delinquency or misappropriation by the Petitioner and none of the offences complained of by the Respondent had been made out, even

prima facie. The amounts alleged to have been misappropriated by the petitioner had been remitted in the Bank and intimated to the Tahasildar,

Vaniyambadi. The Investigating Agency was of the view that on a mistaken impression, the Respondent had come up with the private complaint,

that the amounts paid by him had been misappropriated by the Petitioner, without adjustment towards land revenue. No specific sum appears to

have been cheated or is mentioned except a vague averment that the total amount would exceed Rs. 2500. On receipt of this report, the

Magistrate does not appear to have made any endorsement on the referred report.

The three courses that were open to the trial Magistrate then were firstly, to drop further action if he decided that there was no sufficient ground

for proceeding any more. Secondly, he could have taken cognizance of the offence u/s 190(1)(b), Code of Criminal Procedure on the basis of the

police report and issued process without being bound in any manner by the conclusion arrived at by the police in their report. The third way was to

have taken cognizance of the offence u/s 190(1)(a), Crl. P.C. on the basis of the original complaint and proceeded to examine the complainant and

his witnesses upon oath, as provided u/s 200, Code of Criminal Procedure None of these courses had been adopted by the trial Magistrate.

However, on 21st July, 1977, on receipt of the second complaint from the Respondent, even without applying his mind to the earlier complaint, the

trial Magistrate appears to have mechanically taken the case on file and issued process to the Petitioner u/s 204, Crl. P.C. It is apparent that

between the first and second complaints neither any fresh fact had arisen, nor had any special case been made out for entertaining the second

complaint. Further, it appears from the records that the Respondent was examined as P.W.1 when C.C. No. 469 of 1977 (the then number), was

pending on the file of the S.D.J.M., Tirupattur, on 22-10-1983. On 14-5-1986, in the calendar case renumbered as C.C. No. 38 of 1985 one

Dorai-swami had been examined as P.W.2. After that, there has been no progress in the case. It is represented by Thiru P. Baktha-vatsalam,

appearing for the Respondent, that the Respondent called for certain records to prove his case and since those documents had not been made

available, the trial appears to be delayed, The Respondent has already got in to the witness box as P.W.I and deposed, his version. The delay of

over twelve years in this prosecution appears to be rather shocking.

In this background, if we peruse the charges that have been framed by the trial Magistrate, it represents a very sorry state of affairs. Nothing can

be more vague than the first charge which reads that the act of cheating was made on or about 14 years prior to 1975. The second and third

charges relating to forging and falsification of documents appear to be equally vague. It passes one''s comprehension as to how any one in the

position of an accused could defend himself on such vague allegations made in the charge. There is neither definiteness nor distinctness in the

charges framed. However, from the original records, I do not find that the Respondent had in fact made any application for summoning of the

documents the non production of which was stated to be the cause for the delay. The report of the Investigating Agency in the prior complaint, is

referred to me, by the learned Counsel for the Respondent for the purpose of showing that even the prosecuting agency had stated therein that the

original documents were not forthcoming. If, in fact, the original documents had not been forthcoming even in 1977 when the investigation was

done by the concerned police and even now, in 1989, the Respondent is not able to get at the documents, to prove his case, I am of the view that

it is high time that he give it a decent burial, especially when this case had moved along the files of various Courts for over thirteen years. The

report of the Magistrate shows that the case file has passed on from one Court to another in the past few years without anything tangible (result)

being achieved in the process. Apart from this aspect, the long delay in this prosecution must also enure in favour of the Petitioner. The Petitioner

must be held to be seriously prejudiced in his defence and deeply deprived of a reasonable opportunity in the conduct of a fair trial, in view of the

inordinate and inexcusable delay in the conduct of this prosecution I am satisfied that the procedure, to which I have referred, in the progress of

this case, would amount to violation of the principles of natural justice and the prosecution has to be necessarily struck down. Lethargy in

prosecution, wherever it is found, will have to be condemned. The interests of justice, to my mind, do not require the proceedings to be continued

against the Petitioner, especially in the light of the ineptitude of the prosecution. The fundamental right to have a fair and reasonable procedure and

a speedy trial is so sacrosanct that the accused need not have to wait in cases of gross and inordinate delay in the trial Court, to invoke the claim,

that the trial should be halted in its tracks, because his constitutional right stands plainly infracted, for otherwise, the cherished fundamental right

would whittle down to a teasing mirage rendering the very concept and purpose of a speedy trial and fair procedure purely illusory. On this ground

as well, the proceedings in the trial Court are liable to be quashed.

In the light of the reasoning, mentioned above, this petition is allowed and the proceedings in C.C. No. 38 of 1985 on the file of the J.F.C.M.,

Tirupattur, are quashed.

Before parting with this case, I have to make mention of the legitimate grievance expressed by Thiru P.V. Bakthavatsalam, learned Counsel for

the Respondent, that the Petitioner should not seek to sue him for damages for malicious prosecution, since his complaint was bona fide, though,

for several reasons, documents were not available to him to establish his case. Fair enough, Thiru B. Sriramulu, learned Counsel for the Petitioner,

would state that the Petitioner was involved in a motor accident, whereby his leg had to be amputated and that the Petitioner, who is seventy years

old, is not interested in further litigation and the question of a suit for malicious prosecution would never arise. This responsible statement of the

counsel is recorded.