Mr. K. Kathivel,52 Yrs, v. Mr. Kamalesh Kumar,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 10.07.2020

CORAM

THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN Crl. O.P. No. 19541 of 2017 K.Kathirvel S/o. Late Kumaraswamy, Old No.100, New No. 26/190, Perumbur Baracks Chennai - 600 007. .. Petitioner/Accused .vs.

Kamalesh Kumar, Proprietor of M/s. Swastik, Handicrafts & Trophies, No. 26, Mannar Street, Park Town, Chennai - 600 003. ..Respondent/Complainant PRAYER: Criminal Original Petition filed under Section 482 of Criminal Procedure Code praying to call for the records pertaining to C.C.No. 2074 of 2016 on the file of Fast Track Court, Metropolitan Magistrate, FTC-IV George Town, Chennai - 2 and quash the same as not maintainable and devoid of merits. For Petitioner : No Appearance For Respondent : Mr. S.Santhosh Kumar for Mr.J.Suresh

ORDER

This petition has been filed to call for the records pertaining to C.C.No. 2074 of 2016 on the file of Fast Track Court, Metropolitan Magistrate, FTC-IV George Town, Chennai - 2 and quash the same as not maintainable and devoid of merits.

2.

It is seen from the records that the respondent police registered a complaint under Section 200 Cr.P.C. for the offence under Section 138 of the Negotiable Instruments Act, 1881, as against the petitioner and the same has been taken cognizance in C.C.No. 2074 of 2016 on the file of the Fast Track Court, Metropolitan Magistrate, FTC IV, George Town, Chennai -2.

3.

Learned counsel appearing on behalf of the respondent would submit that the trial has been commenced and some of the witnesses have been examined in this case.

4.

It is relevant to rely upon the judgment of the Hon'ble Supreme Court of India passed in Crl.A.No.579 of 2019 dated 02.04.2019 in the case of Devendra Prasad Singh Vs. State of Bihar & Anr., as follows:- " 12.So far as the second ground is concerned, we are of the view that the High Court while hearing the application under Section 482 of the Cr.P.C. had no jurisdiction to appreciate the statement of the witnesses and record a finding that there were inconsistencies in their statements and, therefore, there was no prima facie case made out against respondent No.2. In our view, this could be done only in the trial while deciding the issues on the merits or/and by the Appellate Court while deciding the appeal arising out of the final order passed by the Trial Court but not in Section 482 Cr.P.C. proceedings.

13.In view of the foregoing discussion, we allow the appeal, set aside the impugned order and restore the aforementioned complaint case to its original file for being proceeded with on merits in accordance with law.

5.

Recently, the Hon'ble Supreme Court of India dealing in respect of the very same issue in Crl.A.No.1572 of 2019 dated 17.10.2019 in the case of Central Bureau of Invstigation Vs. Arvind Khanna, wherein, it has been held as follows: "19. After perusing the impugned order and on hearing the submissions made by the learned senior counsels on both sides, we are of the view that the impugned order passed by the High Court is not sustainable. In a petition filed under Section 482 of Cr.P.C., the High Court has recorded findings on several disputed facts and allowed the petition. Defence of the accused is to be tested after appreciating the evidence during trial. The very fact that the High Court, in

this case, went into the most minute details, on the allegations made by the appellantC.B.I., and the defence put-forth by the respondent, led us to a conclusion that the High Court has exceeded its power, while exercising its inherent jurisdiction under Section 482 Cr.P.C.

20.In our view, the assessment made by the High Court at this stage, when the matter has been taken cognizance by the Competent Court, is completely incorrect and uncalled for."

6.

Further the Hon'ble Supreme Court of India also held in the order dated 02.12.2019 in Crl.A.No.1817 of 2019 in the case of M.Jayanthi Vs. K.R.Meenakshi & anr, as follows: "9. It is too late in the day to seek reference to any authority for the proposition that while invoking the power under Section 482 Cr.P.C for quashing a complaint or a charge, the Court should not embark upon an enquiry into the validity of the evidence available. All that the Court should see is as to whether there are allegations in the complaint which form the basis for the ingredients that constitute certain offences complained of. The Court may also be entitled to see (i) whether the preconditions requisite for taking cognizance have been complied with or not; and (ii) whether the allegations contained in the complaint, even if accepted in entirety, would not constitute the offence alleged.

..............

13. A look at the complaint filed by the appellant would show that the appellant had incorporated the ingredients necessary for prosecuting the respondents for the offences alleged. The question whether the appellant will be able to prove the allegations in a manner known to law would arise only at a later stage...................."

The above judgments are squarely applicable to this case and as such, the points raised by the petitioner cannot be considered by this Court under Section 482 Cr.P.C.

7.

In view of the above discussion, this Court is not inclined to quash the proceedings in C.C.No.2074 of 2016 on the

file of the Fast Track Court, Metropolitan Magistrate, FTC IV, George Town, Chennai -2. The petitioner is at liberty to raise all the grounds before the trial Court. The trial Court is directed to complete the trial within a period of six months from the date of receipt of copy of this Order.

8. Accordingly, this Criminal Original Petition is dismissed.

Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar To The Metropolitan Magistrate, FTC-IV George Town, Chennai - 2.

Crl. O.P. No. 19541 of 2017 mr (co) rr ii (01/10/2020)