A.P.Murugan v. The State Of Tamil Nadu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.01.2016
CORAM:
THE HON'BLE MR.JUSTICE R.SUBBIAH W.P.No.38903 of 2015 and M.P.No.1 of 2015 A.P.Murugan ... Petitioner Vs.
1. The State of Tamil Nadu rep. by its Secretary to Government, Home Department, Fort St.George, Chennai-600 009.
2. The Director General of Police, Kamarajar Road, Mylapore, Chennai-600 004.
3. The Registrar, Vigilance, High Court, Madras-104.
4. The learned Sub-Judge, Subordinate Court, Dharapuram, Tiruppur District.
5. The Inspector of Police, Dharapuram Police Station, Crime No.951 of 2015, Tiruppur District.
... Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a writ of Certiorarified Mandamus calling for the records relating to the case in Crime No.951 of 2015 on the file of the 5th respondent-Police and to quash the same insofar as the petitioner is concerned, or in the alternative to direct the respondents 1 & 2 to withdraw the investigation in Crime
No.951 of 2015 from the file of the 5th respondent and to transfer the same, either to CBI or CB CID for fair and impartial investigation, by considering the representation dated 20.11.2015.
For Petitioner : Mr.N.Manokaran For Respondents : Mr.C.Emalias, Additional Public Prosecutor
ORDER
This writ petition has been filed by the petitioner praying for issuance of a writ of Certiorarified Mandamus calling for the records relating to the case in Crime No.951 of 2015 on the file of the 5th respondent-Police and to quash the same insofar as the petitioner is concerned, or in the alternative to direct the respondents 1 & 2 to withdraw the investigation in Crime No.951 of 2015 from the file of the 5th respondent and to transfer the same, either to CBI or CB CID for fair and impartial investigation, by considering the representation dated 20.11.2015.
2.In the affidavit filed in support of this petition, inter alia, it has been averred by the petitioner as follows:- 2(1)The petitioner joined as an Advocate Clerk in the office of one late Mr.S.S.Thangavelu, Advocate, Dharapuram, in the year 1979. Thereafter, in the year 1990, the petitioner joined the office of Mr.S.Balasubramaniam, Advocate, Dharapuram, in the year 1991. Simultaneously, the petitioner has been attending the clerical work of one Mr.S.Palanisamy, Advocate, who is junior to Mr.S.Balasubramaniam. While so, during April 2015, the said advocates S.Palanisamy and one Mr.V.Sekar prepared and handed over five money suits for filing. The petitioner verified the bundles, carried out the clerical works and filed the following five suits before the Sub-Court, Dharapuram, against one K.Sivasamy_ Name of the plaintiff Name of the defendant Date of pronote and its value Suit number (O.S.Nos .) I.A.No.
For attachment before judgment (I.A.Nos.) Rajitham K.Sivasamy 14.09.2012 for Rs.5 lakhs 170/2015 317/2015
Name of the plaintiff Name of the defendant Date of pronote and its value Suit number (O.S.Nos .) I.A.No.
For attachment before judgment (I.A.Nos.) Ashok Kumar K.Sivasamy 10.09.2012 for Rs.5 lakhs 171/2015 318/2015 Nallasamy K.Sivasamy 10.09.2012 for Rs.5 lakhs 172/2015 319/2015 Sathishkuma r K.Sivasamy 14.09.2012 for Rs.5 lakhs 173/2015 320/2015 Bharani Raja K.Sivasamy 10.09.2012 for Rs.5 lakhs 174/2015 321/2015 The above suits were filed on 23.04.2015. Within a few days from the date of filing the said suits, the Sheristadhar of the Sub-Court, by name V.Baskaran (now retired) contacted the petitioner through his cell phone around 6.00 am, and informed about missing of the original pro-notes relating to the above said five suits. Immediately, the petitioner told him to come and report the matter to the advocates concerned at 9.00 am. The said Sheristahar came around 10.40 am., to inform the matter to Mr.S.Palanisamy, Advocate, and requested to give some other blank pro-notes to replace them in the bundle; but, the advocate stoutly denied his request and instructed him to trace the missing documents.
Immediately, the said S.Palanisamy, Advocate has reported the matter to the SubJudge, Dharapuram; but, no action was taken. 2(2)Again the said Advocate S.Palanisamy, along with his senior Mr.S.Balasubramaniam and the Additional Government Pleader Mr.N.Anandan, met the 4th respondent (Sub-Judge) and reported the above matter. In view of the inaction on the part of the 4th respondent (Sub-Judge), both the Advocates gave two complaints, dated 06.04.2015 to the learned Sub-Judge, Dharapuram, for taking necessary action. The plaintiffs in the said suits have also gave their complaint in the form of a representation to the District Judge and the Sub-Judge, Dharapuram.
2(3)It is further stated by the petitioner that the above said occurrence is not an isolated incident, whereas the advocates and litigants have already given many complaints in respect of missing of more than 100 bundles in the Sub-Court, Dharapuram. Therefore, the Advocates Association had declared indefinite boycott of Court till the bundles are located in
the Court; subsequently, pursuant to the suggestion given by the Registrar of this Court, boycott was withdrawn and the said dispute was entrusted to one Mr.S.K.Karvendan, Advocate / former M.P, for amicable solution. During the course of enquiry, the above named Sheristadhar Baskaran gave a statement in writing to Mr.S.K.Karvendan stating that one Ponmurthy, Advocate Cleark attached to the office of Mr.K.M.Manivannan, was responsible for the above mischief. The said Mr.K.M.Manivannan, Advocate is the counsel for the above said K.Sivasamy (defendant in the said suits), and the said counsel is the brother-in-law of Mr.S.K.Karvendan and as such, a report has been sent to this Court to suit the convenience of the defendant K.Sivasamy and his associates. 2(4)While so, the 4th respondent (Sub-Judge, Dharapuram), has sent a letter in D.No.
407/2015, dated 29.07.2015 to the 3rd respondent-Registrar Vigilance, High Court, Madras, seeking permission to lodge a police complaint against the Sheristadhar V.Baskaran. However, in response to the said letter dated 29.07.2015, the 3rd respondent has sent a communication in Roc.No.385/2015/VC and Roc.No.430/2015/VCC.No.41/2015/VC, dated 20.10.2015 to the learned Principal District Judge, Tirupur, which reads as under_ "As directed, the Principal District Judge, Tiruppur is informed that criminal complaint shall be lodged against Thiru.V.Baskaran, Sheristadhar (Retired) and Thiru.A.P.Murugan, Advocate Clerk immediately before the police of competent jurisdiction.
It is expected that the police investigation will surely unearth the complicity of the advocate Thiru S.Palanisamy, if any." Pursuant to the above proceedings dated 20.10.2015, the learned District Judge, Tirupur has issued direction to the 4th respondent to give a police complaint against the petitioner and the said Sheristadhar V.Baskaran. Accordingly, the 4th respondent has lodged a complaint dated 03.11.2015 before the 5th respondent and it was registered as Crime No.951 of 2015 under Section 380 IPC. As per the complaint dated 03.11.2015, the petitioner's name has been implicated as 2nd accused on the ground that the Sub-Judge has issued instruction to lodge the complaint as against the petitioner herein also. But, absolutely no allegation was made and no incriminating materials have been produced against the petitioner herein.
The petitioner's name appears to have been added along with the retired Sheristadhar to divert the issue and to protect the real accused persons from the clutches of law. Hence, the petitioner has come forward with the present writ petition before this Court.
3.It is the submission of the learned counsel appearing for the petitioner that in the complaint, absolutely no allegation has been made against the petitioner. The present complaint has been filed only because, the 3rd respondentRegistrar Vigilence directed to lodge the complaint as against the Sheristadhar and the petitioner herein. Further, the learned counsel for the petitioner submitted that the occurrence is not an isolated incident, whereas the Advocate and litigants have given several complaints about the missing of records/bundles. The petitioner is having apprehension that he would be made responsible for the missing of bundles.
Further, the name of the clerk who was attached to the office of the Advocate for the defendant in the said suits, whose name has been mentioned in the statement of the Sheristadhar, has been purposely suppressed in the FIR, to protect the others who were responsible for the said misdeeds. If the 5th respondent-police is allowed to continue the investigation, there will not be any fairness in the investigation. Thus, the learned counsel for the petitioner sought for quashing the complaint or in the alternative, to transfer the investigation from the 5th respondent to CBI or CB CID.
4.The learned Additional Public Prosecutor, by filing a counter, has opposed to grant the relief sought for the petitioner. The learned Additional Public Prosecutor has produced a copy of the letter dated 28.07.2015 given by the Sheristadhar Bhaskaran to the President of the Advocate Associates, Dharapuram, and submitted that in the said letter the said Sheristadhar Baskaran (A1) has clearly stated that 2nd accused/petitioner herein is responsible for missing of documents. Further, so far, the 5th respondent-Police has examined 29 witnesses and all the witnesses corroborated their version that they all know about the missing of original pro-notes with regard to the above O.S.Nos.170 to 174 of 2015. The investigation so far conducted would show that the petitioner/A2 took Sheristadhar/A1 on 03.05.
2015 from his office at evening hours to TASMAC Shop and asked him to consume liquour and after consuming liquour, A2 to took A1 back to his office and left in his office and at that time, the 1st accused was semi-unconscious. After few hours, Sheristadhar/A1 noticed that the pro-notes from the documents were missing. Immediately, the Sheristadhar/A1 called the petitioner/A2 over phone to inform about the missing documents. But, petitioner/A2 did not pick up the call. The learned Additional Public Prosecutor would further submit that the investigation is at crucial stage and at this juncture, the prayer of the petitioner cannot be entertained. Thus, he sought for dismissal of the writ petition.
5.Keeping the submissions made on either side, I have carefully gone through the entire materials available on record.
6.In my considered opinion, the petitioner has not made out any case, to quash the FIR. It is well settled legal principal that while the investigation is pending, the question of quashing the FIR is very narrow. The present writ petition has been filed by the petitioner only with a bald and vague allegations. I do not find any merit in the writ petition either to quash the FIR or to transfer the investigation to some other agency. Hence, the writ petition is liable to be dismissed.
Accordingly, the writ petition is dismissed.
Consequently, connected Miscellaneous Petition is closed. No costs.
Sd/- Assistant Registrar(CCC) //True Copy// Sub Assistant Registrar ssv To
1. Secretary to Government, Home Department, Fort St.George, Chennai-600 009.
2. The Director General of Police, Kamarajar Road, Mylapore, Chennai-600 004.
3. The Registrar, Vigilance, High Court, Madras-104.
4. The learned Sub-Judge, Subordinate Court, Dharapuram, Tiruppur District.
5. The Inspector of Police, Dharapuram Police Station, Crime No.951 of 2015, Tiruppur District.
+1cc to Mr.N.Manokaran, Advocate, S.R.No.2911 W.P.No.38903 of 2015 and M.P.No.1 of 2015 SVI(CO) CA(01/02/2016)