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Madras High CourtCRL OP/21146/2020disposed of with direction

C.Sumathi v. The Competent Authority

2022-04-25Honourable Dr Justice G. Jayachandran8 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 25.04.2022

CORAM:

THE HONOURABLE DR. JUSTICE G. JAYACHANDRAN Crl.O.P.No.21146 of 2020 and Crl.M.P.No.8994 of 2020 and W.M.P.Nos.4618 of 2021 and 24405 of 2020 in W.P.No.13113 of 2017 Crl.O.P.No.21146 of 2020 C.Sumathi ..Petitioner /versus/ 1.The Competent Authority, District Revenue Officer, Coimbatore.

2.The State by, Deputy Superintendent of Police, EOW II, Coimbatore.

3.S.Muthusamy 4.S.Thirumavalavan ..Respondents (Impleaded R3 and R4 as per order in Crl.M.P.No.1610 of 2021 in Crl.O.P.No.21146 of 2020 dated 25.04.2022) Prayer:

Criminal Original Petition has been filed under Section 482 of Cr.P.C., praying to direct the Hon'ble Special Court for TNPID Cases, Coimbatore to receive the compounding petition filed by the petitioner and to dispose the same in accordance with law in C.C.No.8 of 2008 pending before the Hon'ble Special Court for TNPID Cases, Coimbatore. W.M.P.No.4618 of 2021 in W.P.No.13113 of 2017 1.S.THIRUMAVALAVAN 2.S.MUTHUSAMY 3.K.CHINNASAMY 4.K.KALICHAMY 5.K.SAKTHIVEL 6.S.KRISHNASAMY 7.RAJAMMAL

8.A.RAMASAMY 9.K.KARUNTHACHALAM 10.V.LINGAPPAN 11.V.G.VARADHARAJ 12.S.VELUSAMY 13.S.ARUNACHALAM 14.K.RANGASAMY 15.A.CHENNIAPPAN 16.R.KANNAKI 17.S.RANGASAMY 18.K.SAROJINI 19.M.NADARAJ 20.U.R.RANGASAMY 21.S.NATARAJAN 22.T.M.VELUSAMY 23.R.MANI 24.K.V.KANDASAMY 25.K.SARASWATHY 26.K.KUPPUSAMY 27.A.PARVATHI 28.V.S.VELLINGIRI 29.K.DURAISAMY 30.V.M.JEGADESAN 31.B.KUMAR 32.S.RAMASAMY 33.M.NANDHAKUMAR 34.KURUNTHACHALAM 35.K.RAVICHANDRAN 36.K.KALIAMMAL 37.A.SENGALIAPPAN 38.A.JAYAPRAKASH 39.S.KUPPUSAMY 40.R.SHANMUGAM 41.V.P.RAMASAMY

...Petitioners/Respondent No.3-43 in WP.No.13113/2017

Vs 1.C.Sumathi ... Respondent 1/Writ Petitioner 2.The Competent Authority District Revenue Officer Coimbatore 3.The State rep by The Deputy Superintendent of Police Economic Offences Wing-II Coimbatore ... Respondent 2 & 3/Respondent 1 & 2 Prayer:

Pleased to consider the above mentioned facts and clarify the order dated 21.09.2020 made in W.P.Nos.13113/2017 and 26579/2018 and W.M.P.Nos.14008/2017, 30948 and 37227/2018 suitably and thus render justice.

W.M.P.No.24405 of 2020 in W.P.No.13113 of 2017 & 26579/2018: 1.C.Sumathi ... Petitioner/Petitioner in both W.Ps Vs 1.The Competent Authority District Revenue Officer Coimbatore 2.The State rep by The Deputy Superintendent of Police Economic Offences Wing-II Coimbatore ... Respondents/Respondents 1 & 2 in both W.Ps 3.S.THIRUMAVALAVAN 4.S.MUTHUSAMY 5.K.CHINNASAMY 6.K.KALICHAMY 7.K.SAKTHIVEL 8.S.KRISHNASAMY 9.RAJAMMAL 10.A.RAMASAMY 11.K.KURUNTHACHALAM 12.V.LINGAPPAN 13.V.G.VARADHARAJ 14.S.VELUSAMY 15.S.ARUNACHALAM 16.K.RANAGASAMY 17.A.CHENNIAPPAN 18.R.KANNAKI 19.S.RANGASAMY 20.K.SAROJINI 21.M.NATARAJAN 22.U.R.RANGAAMY 23.S.NATARAJAN 24.T.M.VELUSAMY 25.R.MANI 26.K.V.KANDASAMY 27.K.SARASWATHI 28.K.KUPPUSAMY 29.A.PARVATHI 30.V.S.VELLINGIRI 31.K.DURAISAMY 32.V.M.JEGADESAN 33.B.KUMAR 34.S.RAMASAMY 35.M.NANDHAKUMAR 36.KURUNTHACHALAM 37.K.RAVICHANDRAN 38.K.KALIAMMAL 39.A.SENGALIAPPAN 40.A.JAYAPRAKASH

41.S.KUPPUSAMY 42.R.SHANMUGAM 43.V.P.RAMASAMY R3 to R43 impleaded as per order dated 25.07.2017 in W.M.P.No.17497/2017 in W.P.No.13113/2017 ... Respondents 3-43 in W.P.No.13113/2017 Prayer: Pleased to clarify the Para No.13 of the Common Order in WP.No.13113 of 2017 and 26579 of 2018 dated 21.09.2020 and pass necessary orders which may deem fit and proper in the circumstances of the case and thus render justice. For Petitioner :

Mr.M.Velmurugan For Respondents :

Mr.S.Santhosh, Government Advocate (Crl.Side) for R1 and R2 COMMON ORDER The Criminal Original Petition in Crl.O.P.No.21146 of 2020 has been filed by C.Sumathi, the petitioner/accused No.4 to direct the Hon'ble Special Court for TNPID Cases, Coimbatore to receive the compounding petition filed by the petitioner and to dispose the same in accordance with law in C.C.No.8 of 2008 pending before the Hon'ble Special Court for TNPID Cases, Coimbatore.

2. The Criminal Miscellaneous Petition in Crl.M.P.No.8994 of 2020 in Crl.O.P.No.21146 of 2020 has been filed by C.Sumathi, the petitioner/Accused No.4 to direct the Special Court for TNPID Cases, Coimbatore not to frame charges in C.C.No.8 of 2008 pending disposal of the compounding petition filed by the petitioner/accused.

3. The Criminal Miscellaneous Petition in W.M.P.No.4618 of 2021 in W.P.No.13113 of 2017 has been filed by S.Thirumavalavan and others praying to consider the above mentioned facts and clarify the order dated 21.09.2020 made in W.P.Nos.13113/2017 and 26579/2018 and W.M.P.Nos.14008/2017, 30948 and 37227/2018 suitably.

4. The Criminal Miscellaneous Petition in W.M.P.No.24405 of 2020 in W.P.No.13113 of 2017 has been filed by C.Sumathi the petitioner/Accused No.4 praying to clarify para No.13 of the Common Order in W.P.No.13113 of 2017 and 26579 of 2018, dated 21.09.2020.

5. By Common order in W.P.No.13113 of 2017 and 26579 of 2018 and W.M.P.nos.14008 of 2017, 30948 and 37227 of 2018, this Court disposed of the batch of cases on 21.09.2020 in which paragraph No.13 , which sought to be clarified, reads as below:- "13.Thus, it is made clear that since the request of the petitioner dated 16.10.2017 made to the competent authority itself is only for settling the dues to the depositors and for closing the issue and the principal amount of the 54 depositors are directed to be settled, there is no impediment for the competent Court to proceed with the case pending before it. However, it is also made clear that if the settlement is made, it is for the petitioner to take out appropriate application for compounding the offence, which shall be dealt with by the Special Court in accordance with law."

6. The clarification to this paragraph is sought, because, when the petitioner herein sought for compounding the offence by invoking Section 5A(1) of the Tamil Nadu Protection of Interests of Depositors (In Financial Establishments) Act, 1997, the same was opposed by few depositors and the trial Court was not able to consider the said request. Out of 54 unsettled creditors, some of them were demanding interest for their investment along with the principal.

7. Pending petitions for clarification filed by C.Sumathi, the petitioner/accused No.4, the investors by name S.Thirumavalavan and Muthusamy filed a Writ Miscellaneous Petition in W.P.No.13113 of 2017 which was numbered as W.M.P.No.4618 of 2021, wherein they sought for clarification/modification in the order dated 21.09.2020 made in W.P.Nos.13113 of 2017 and 26579 of 2018 and W.M.P.Nos.14008/2017, 30948 and 37227 of 2018, which is the common order passed by this Court. Also, another petition in Crl.M.P.No.1610 of 2021 in Crl.O.P.No.21146 of 2020 has been filed by S.Muthusamy and S.Thirumavalavan, wherein he and on behalf of Thirumavalavan has taken out a petition to get themselves impleaded in Crl.O.P.No.21146 of 2020 expressing their stand that they are not ready for compounding the offence, unless they are paid the interest along with principal.

8. In such circumstances, clarification is sought both by the accused and few depositors in the above petitions. In addition, the accused also seeks for a direction to the trial Court to receive the compounding petition.

9. Whether non-payment of interest component will be a bar (or) impediment to invoke Section 5A of the Tamil Nadu

Protection of Interests of Depositors (In Financial Establishments) Act, 1997 is the actual point in dispute between the accused and the depositors.

10. This Court by its earlier order directed the learned Government Advocate (Crl.Side) to file Status Report of the case so that it will be appropriate for this Court to pass a composite order on these petitions. Accordingly, the learned Government Advocate (crl.side) filed a Status Report and gist of the Status Report is that out of 128 creditors, the petitioner herein has already settled full in respect of 74 creditors and the offence has been compounded. Remaining 54 creditors, some of them are demanding interest in addition to the principal amount and the money available with District Revenue Officer could not be disbursed, in view of the petitions, pending before the High Court.

11. The Statement indicates that presently, approximately a sum of Rs.3.25 crores is available which was deposited in the interest bearing account and renewed periodically. This money is readily available for disbursement to the creditors.

12. As far as unpaid 54 creditors, a sum payable towards principal is Rs.2,19,90,500/-. The interest component if calculated at the rate of 18% from the date of deposit till today will be Rs.8,84,40,000/- (Approximately Rs.9 crores).

13. The depositors who claim interest for their investment alleges that the accused persons have 12 other valuable properties and the same can be liquidated to pay the interest. Whether to compound the offence by paying the principal with or without interest is an option given to the parties under Section 5 A of the Tamil Nadu Protection of Interests of Depositors (In Financial Establishments)Act, 1997.

14. Hence, to proceed with and remove the statement for invoking Section 5A of the Tamil Nadu Protection of Interests of Depositors (In Financial Establishments) Act, 1997, it is suffice to direct the District Revenue Officer/Competent Authority to initially disburse the principal amount payable to the remaining 54 depositors without prejudice to their claim of interest and report the same to the trial Court. On receipt of such report, the trial Court shall proceed further, taking note of Section 5A of the Tamil Nadu Protection of Interests of Depositors (In Financial Establishments) Act, 1997, which reads as below:

[5A.Compounding of offence:- (1)An offence punishable under Section 5 may, before the institution of the prosecution, be compounded by the Competent Authority or after the institution of the prosecution, be compounded by the Competent Authority with

the permission of the Special Court, on payment of the entire amount due to the depositors with or without interest.

(Emphasis added) (2)Where an offence has been compounded under sub-section (1), no proceeding or further proceeding, as the case may be, shall be taken or continued against the offender, in respect of the offence so compounded and the offender, if in custody, shall be discharged forthwith].

The District Revenue Officer/Competent Authority is also directed to complete the said process, within a period of 45 days from the date of receipt of a copy of this order. The trial Court shall not proceed further, till the receipt of the report from the District Revenue Officer regarding the disbursement of the principal to the unpaid depositors.

15. Thus, it is clarified that the amount available with the District Revenue Officer has to be disbursed to the unpaid creditors to discharge the principal amount which has been deposited with the accused. It is open to the depositors to be satisfied with the principal and compounding the offence or seek interest. It is for the trial Court to decide about the entitlement/legality for the claim of interest and decide the petition for compounding the offence.

16. With the above observation and directions: ● Crl.O.P.No.21146 of 2020 and Crl.M.P.No.8994 of 2020 are disposed of.

● W.M.P.Nos.4618 of 2021 and 24405 of 2020 in W.P.No.13113 of 2017 are disposed of. No order as to costs.

Sd/- Assistant Registrar (CS-III) //True Copy// Sub Assistant Registrar ari To 1.The Special Court for TNPID Cases, Coimbatore.

2.The Competent Authority, District Revenue Officer, Coimbatore.

3.The Deputy Superintendent of Police, EOW II, Coimbatore.

Copy to:

The Section Officer, Writ Section, High Court, Chennai.

+1cc to Mr.P.P.Shanmugasundram, Advocate SR. No.28285 +1cc to Mr.M.Velmurugan, Advocate SR. No. 29039 Crl.O.P.No.21146 of 2020 & Crl.M.P.No.8994 of 2020 and W.M.P.Nos.4618 of 2021 and 24405 of 2020 in W.P.No.13113 of 2017 SKM (CO) PR (18/05/2022)