B. Srinivasan v. The Commissioner Of Police
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT ORDERS RESERVED ON : 29.10.2018 ORDERS PRONOUNCED ON : 31.10.2018
CORAM
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH Crl.O.P.(MD)No.6776 of 2018 and Crl.MP(MD)No.3250 of 2018 1.B.Srinivasan 2.S.Vinayagamoorthy 3.M.Kannan 4.S.Puspam 5.S.Chokammal 6.S.Venkteswari 7.K.Vijayabharathy 8.S.Rajkumar 9.K.Sivagurunathan 10.S.Amutha 11.M.Punitha 12.A.Kannan 13.K.Latha
...Petitioners
Vs 1.The Commissioner of Police, Madurai City, Madurai District.
2.The Superintendent of Police, CBCID, Madurai.
3.The Inspector of Police (Crime), E-2, Mathichiyam Police Station, Madurai.
4.The Inspector of Police, City Crime Branch, Madurai.
5.Jose Mose Antony 6.Prabhakaran 7.Gurunathan ... Respondents PRAYER:- Petition filed under Section 482 of Criminal Procedure Code,to call for the records and set-aside the final report filed by
the R4 and taken on the as C.C.222 of 2010 on the file of Judicial MagistrateNo.I, Madurai and set-aside the same and further direct the first respondent to conduct reinvestigation in Crime No.1633 of 2009 on the file of the fourth respondent by transferring the same to the second respondent and to file a final report by altering the provision under Sections 406, 420, 120(b) of IPC and 5 of Tamil Nadu Protection of Interest of Depositors (In Financial Establishments) Act 1977 and final report afresh before Special Court under Tamil Nadu Protection of Interest of Depositors (In Financial Establishments) Act, Madurai, within a stipulated period as may be fixed by this Court.
For Petitioners : Mr.J.Jeyakumaran For Respondents : Mr.K.Suyambulinga Bharathi, 1 to 4 Government Advocate (Crl Side) For Respondent No.5 : Mr.K.Sundaravel
ORDER
This petition has been filed before this Court seeking for reinvestigation in Crime No.1633 of 2009, on the file of the fourth respondent and to transfer the same to the CBCID. 2.When this matter came up for hearing on 29.08.2018, the following order was passed by this Court:
"This is a shocking case, where the accused persons have virtually looted and plundered money from the innocent general public and have cheated them by not retuning back the money.
2.It is seen from the records that Jose Moses Antony has been shown as Accused No.1, Prabhkaran has been shown as Accused No.2 and Gurunathan has been shown as Accused No.3. The First Information Report was registered in Crime No.1633 of 2009 and the final report was filed on 18.07.2010 by the fourth respondent. The final report was filed as against all the three persons for the offences under Sections 406, 420 and 120(b) I.P.C. In the final report itself all the three accused have been shown as absconding accused.
3. Accused No.3 viz., Gurunathan surrendered before the Judicial Magistate No.II, Madurai and filed a bail petition and he was released on bail by the Judicial Magistrate No.II, Madurai by an order dated 24.10.2009. Accused No.2, viz., Prabhakaran was granted anticipatory bail by this Court in Crl.O.P(MD).No.10832 of 2009, dated 02.03.2010.
4. In this case, Accused No.1, who was the main accused continued to be absconding and he filed a surrender petition before the Judicial Magistrate No.I, Madurai on 01.02.2018. Along with the surrender petition he has also filed the bail petition. In both petitions, it is totally silent as to why A1 did not surrender before the Court immediately and what was the reason for the delay in surrendering.
5.Unfortunately, the Inspector of City Crime Branch was not even made as a party in the bail petition. Instead, the said Jose Moses Antony added the Inspector of Police, Mathichiyam Police Station as the respondent. At the time, when the bail petition was filed, the said Mathichiyam Police Station had nothing to do with this case and the case was investigated by the fourth respondent. The final report was also filed by the fourth respondent. The Judicial Magistrate No.I, Madurai without any application of mind had mechanically passed an order granting bail to the said Jose Moses Antony, even without imposing any condition.
6.This Court is satisfied that the said Jose Moses Antony has played a fraud on the Court and obtained the bail. The City Crime Branch which had investigated the case and filed the final report was not even made as a party in the bail petition and the Judicial Magistrate No.I, Madurai without even conducting any enquiry and without even giving any notice to the City Crime Branch, Madurai had granted bail to the said Jose Moses Antony 7.Where the fraud is manifest, even the solemn of proceedings will get vitiated and the order passed by playing fraud upon the Court will make the very order, non est. The said Jose Moses Antony had cheated the general public. Many have fallen victim by investing the hard earned money.
8.It is submitted by the learned counsel for the petitioners that more than 5000 persons have been cheated to the tune of more than Rs.100/- crores. The magnitude is humongous and the Judicial Magistrate No.I, Madurai has passed an order without any application of mind and in a mechanical fashion. An order has been obtained by the said Jose Moses Antony by playing fraud on the Court. 9.Considering the magnitude of the situation and also taking into consideration of the interest of 5000 depositors, this Court in exercise of its power under Section 482 Cr.P.C is taking cognizance of the order passed by the Judicial Magistrate No.I, Madurai in
Crl.M.P.No.245 of 2018, dated 01.02.2018.
10.Notice is issued to Jose Moses Antony through the fourth respondent returnable by 05.09.2018, calling upon Jose Moses Antony to explain as to why the bail granted in Crl.M.P.No.245 of 2018, dated 01.02.2018 on the file of the Judicial Magistrate No.I, Madurai should not be cancelled. The fourth respondent is directed to produce the said Jose Moses Antony before this Court on 05.09.2018 at 2.15 p.m without fail."
3.Accordingly, the above said John Moses Antony was produced before this Court by the respondent Police and he appeared through his Counsel. The learned Counsel representing Jose Moses Antony submitted that the said person did not swindle any money nor had he gained any money in any unfair manner. The learned Counsel also submitted that he gave employment for more than fifteen persons and paid them salaries. He was only running an organization called as Credit Advert Solutions and it was only an advertising company and not a company, which collected money from customers. As per the business model, the advertising slot is purchased by the customers by payment of money through demand drafts and there was no question of any deposits or misappropriation made by the said John Moses Antony.
4.This Court was not convinced with the answers given by the above said John Moses Antony and therefore, passed the following order on 27.09.2018:
"The fourth respondent has filed a status report before this Court detailing various steps taken by the fourth respondent in getting the particulars of the persons who have deposited money and also the particulars of the payments made by the fifth respondent. The fourth respondent has sought for time in order to verify the various Bank statements, wherein the fifth respondent claims to have repaid certain amounts to the depositors.
2.Post the matter on 25.10.2018 at 4.00pm. In the mean time the respondent Police is directed to complete the entire process and file a report before this Court." 5.Pursuant to the above said order, the respondent Police filed a status report before the Court on 29.10.2018. It will be relevant to extract the portions of the status report: "The process of investigation is given in nutshell as below:- a. The then Investigation Officer, Thiru Palanisamy who took up the investigation, examined the de-facto
Complainant, Karthikeyan and arrested the 3rd accused Gurunathan on 22.10.2009 and produced him before the Learned Judicial Magistrate No.2, Madurai and sent him for remand.
b. As per the orders of the Deputy Commissioner of Police (Crime) Madurai City vide C.No. 253/Camp/DC-Crime/ MC/2009 dated 27.10.2009, the case was transferred to the Madurai City Central Crime Branch and investigation was taken up by Thiru Nethaji, the then Inspector of Police. He examined the following witnesses who were all victims of the massive fraud committed by the accused and recorded their statements under section 161(3) of the Code of Criminal Procedure, 1973 on the dates noted against their names:- Sl.
No.
Date Name of witnesses 1.
02.11.2009
1. Tmt. Latha.
2. A. Manohar
3. T. Mani
4. K. Sivasubramanian
5. C. Beula Santhakumari
6. R. Nirmala
7. S. Sundaram
8. R.M.M. Abubacker
9. S. Ponnuchamy 2.
03.11.2009
10. Tmt. R. Dheepa
11. M. Rafiya Begum
12. S. Gurusamy
13. N. Rajendran
14. K. Shiek Fareeth
15. A. Nataraj
16. M. Aravalli
17. Sivabackiam
18. N. Ramathal
19. N. Gunasekaran 3.
04.11.2009
20. M. Ponmani
21. V. Sunilkumar
22. A. Natarajan
23. R. Sivasamy
24. R. Murugiah Servai
25. V. Sivakumar
26. M. Sivakumar
27. V. Nagarajan
28. Velliangiri
29. A. Thangamani
4.
05.11.2009
30. E. Sornalatha
31. B. Nellaiappar
32. S. Rathnavel
33. S. Vetrivel
34. B. Rajadurai
35. Padmini Priyadarshini
36. A. Senthilkumar
37. V. Isakkibabu
38. Shanmugasundaram
39. S. Muruganandam 5.
06.11.2009
40. A. Umameshwari
41. S.A. Nagalakshmi
42. S. Periyachi Devi
43. P. Mahendran
44. M. Krishnakumari
45. Anburaj 6.
08.11.2009
46. M. Janakiraman
47. Venkatesh
48. R. Davidraj
49. Natarajan
50. M. Krishnakumari
51. Velu
52. Bose
53. Murugan 7.
09.11.2009
54. P.X. Nathan
55. Sriram 56.. S. Yuvaraj
57. V. Ramu
58. M. Babu
59. U. Rajasekar
60. T. Subbiah
61. Jayanthi
62. Puthiaraj
63. D. Saravanan 10.11.2009
64. N. Sripathi
65. Karuthal
66. Sebastin
67. Z. Barook
68. N. Jithendra Booker
69. N. Ragupathy
70. R. Paramaramakrishnan
71. Muthupandi
72. Arumugam 9.
11.11.2009
73. Balanagammal
74. Annammal
75. K.M. Sureshbabu
76. K.L. Gopal
77. S. Zinnah
10.
12.11.2009
78. Ramakrishnaya
79. A. Amutha
80. Anees Mohammed
81. N.M. Boopathirajan
82. R. Rengasamy
83. S. Arusamy
84. R. Alliammal
85. G. Maheswari
86. R. Suresh
87. B. Shiek Dawood
88. S. Annamalaisamy 89 P. Balanagamalai
90. K.M.Sureshbabu 11.
13.11.2009
91. M. Palaniappan
92. T. Senthilkumar
93. Raja
94. K. Philavendran
95. K. Balachandran
96. P. Sivakumar
97. S. Roselin
98. S. Jayasingh Ponraj
99. G.Ramakrishnan
100. S. Murugan 12.
14.11.2009
101. J. Jayaraj
102. S. Sujathaleediyan
103. R. Muthulakshmi
104. Sureshkumar
105. P.Muthuselvam 106.T. Jegadeeswaran
107. Jayasingkanakaran
108. R. Rajan
109. R.G.W. Karthick 13.
15.11.2009
110. A. Muthukumar 111 Jegadeesh
112. Jayasudha
113. A. Muthukumar
114. Jegadeesh
115. Jayasudha
116. C. Nesamony
117. S. Selvan
118. C. Ramanathan 119 A. Vaijee
120. G. Solyaar
14.
16.11.2009
121. G. Geetha
122. C. Ayyappan
123. K. Fathima
124. Dhanapal Gandhi
125. C. Vijayakumar
126. J. Revathi
127. M. Nalinadevi
128. Dr.M. Jayapandi
129. D. Sankar
130. A. Ponsingh 15.
17.11.2009
131. Manikandan
132. T. Dhanasekaran
133. M. Pandi
134. S. Poyyamani
135. Kathirvel
136. T. Kalidoss
137. Gopalakrishnan
138. P. Devamani
139. M. Dhanalakshmi
140. M. Chandrasekar 15.
18.11.2009
141. S. Arockiaraj
142. R. Muthukumar
143. T. Sakunthala
144. D. Guruprakash
145. V. Pandiselvi
146. M. Gothandababu
147. T. Vinegarraj
148. S. Murugan
149. A. Athilakshmi
150. K. Banumathi 16.
19.11.2009
157. S. Ganasundaram
158. S. Dhineshbabu
159. R. Santhi
160. M. Kathirvel 17.
20.11.2009
161. Sankarasubbia
162. M. Boominathan
163. M. Karuppiah
164. Sekar
165. G.S.K. Jayasathiri
166. S. Karpagavalli
167. D. Jegan
168. M. Arifaha
169. D. Radhakrishnan
170. S. Madurarani
18.
21.11.2009
172. K.Krishnan
173. D. Santhanam
174. Nandakumar
175. A. Anthony Jesurajan
176. A. Kathrine Rosal
177. K. Chandrasekaran
178. A. Muthumani
179. M. Kumutha
180. K. Krishnan
181. S. Lalitha 19.
22.11.2009
182. Manoharan
183. Santhi
184. S. Balakrishnan
185. Vijayakamalakumari
186. Muralikrishnan
187. G. Muthuselvi
188. Gajendran
189. B. Meenakshi
190. Lalitha
191. M. Dearajan
192. A. Parthiban 20.
08.02.2010
193. Adikannan
194. Vasu
195. Rajendran
196. A. Saroja
197. S. Annapoornam 21.
15.03.2010
198. Umagomati
199. Thavasiappa
200. Adhilakshmi
201. Kanjana Devi
202. Kalaiselvi 22.
11.04.2010
203. Pandiammal 204.Devaki c. The first accused Jose Moses Antony filed a criminal original petition in Crl.O.P. (MD) No. 8283 of 2009 seeking for anticipatory bail and conditional bail was granted to him dated 09.10.2009.
d. Thereafter one of the victim, Thiru Karthikeyan filed a writ petition in WP (MD) No. 11002 of 2009 seeking for transfer of investigation to CB CID and later the same was dismissed as withdrawn dated 10.11.2009.
e.One of the victim A. Vasu filed a criminal original petition in Crl.O.P. (MD) No. 4130 of 2010 for a direction to file final report and this Hon'ble Court by an order dated 09.04.2010 directed the Investigation Officer to file final report within a period of 4 months.
f.The then Investigation Officer, Thiru Nethaji on completion of investigation and on getting the advisory opinion from the concerned Law Officer prepared charge sheet by arraying Tvl.
Karthikeyan, M. Kanan, K.Latha, P. Suresh; S. Hemalatha; S.
Sornasuthandrarajan;
K.
Balamurugan;
V. Vijayakumar; S. Athilakshmi; J. Keerthika; S. Thiruvadikannan; A Vasu; R. Ravindran; A. Saroja; S.Annapoornam;
P.
Umagomathi;
A.
Thavsiappan;
S.
Athilakshmi;
B.
Kanchana;R.
Kalaiselvi;
J. Pandiammal; V. Devaki as witnesses and handed over to the same to the Mathichiyam (Crime) Police Station and the Inspector of Police lodged charge sheet against the accused before the Learned Judicial Magistrate No.II on 18.07.2010 and on proper application of mind the same was taken cognizance in C.C. No. 222/2010 and pending trial before the Learned Court.
g. In the meanwhile, the 1st accused, the 5th Respondent herein obtained anticipatory bail in Crl.M.P. No. 243/2018 on the file of the Learned Principal District and Sessions Judge, Madurai dated 18.01.2018. He surrendered before the Learned Judicial Magistrate, produced sureties and was enlarged on anticipatory bail. h. On the criminal original petition filed by the victims Tvl. B. Srinivasan, S. Vinayagamoorthy, M.Kannan, S.Pushpam, S.Sokkammal, S.Venkateswari, K.Vijay Barathi,S.Rajkumar, K.Sivagurunathan, S.Amutha, M.Punitha, A.Kannan and Tmt.K.Latha in Crl.O.P. (MD) No. 6776 of 2018 and as ordered by this Hon'ble Court, the 1st accused was produced before this Hon'ble Court on 05.09.2018 and after enquiring the accused, the case stood adjourned to 12.09.
2018 and this Hon'ble Court directed the 1st accused to settle all the outstanding dues to the victims and further directed the 1st accused to appear before the Hon'ble Court on 27.09.2018. 4.I humbly submit that the enquiry so-far done revealed that the 1st accused with a clever and diabolic scheming solicited deposit for the Company which was not registered as a 'non banking financial institution' with the Register of Companies or with Reserve Bank of India. On a clever design he collected amount from the victims camouflaging the deposit as fees towards their appointment as agents and paid incentive rebate from time to time through bank. But after collecting a huge amount closed the company and cheated the depositors.
their complaints, it is only a tip of the iceberg and the number may increase to 1000. Since only criminal action has been initiated against the accused, the 1st accused with a clever scheming settled the amounts due to the victims who were cited as witnesses with an intention to make dent in the prosecution case which would enable him to go scot free. More-over in the present issue, the element of civil overture is involved and that the respondent police being the criminal investigation wing is not vested to go into aspects other than bringing the criminals to book under the provisions of the Indian Penal Code and it can not act as a adjudicating forum to decide the quantum of amount payable to each victim. In a similar instances, the Principal Bench of this Hon'ble Court in a case pertaining to one MRDT company, Madurai in WA (MD) No.
1264 of 2014 dated 14.03.2014, directed the Government to appoint a Commission consisting of high ranking officials of Economic Offences Wing, District Revenue Officers, Officers of SEBI etc. to ensure collecting money from with accused and ensure equitable distribution. In a similar manner, the victims pertaining to DISC ASSETS, Madurai, this Hon'ble Court in WP No. 8084 of 2017 appointed a Retired Hon'ble Judge of this Hon'ble Court to go into the wealth amassed by the Company out of the deposits garnered and equitable distribution to all the victims."
6.The status report clearly reveals the fact that the above said John Moses Antony has indulged in a large scale fraud. The entire case was lying in hibernation for more than nine years and some of the depositors have filed this petition for reinvestigation in the year 2018 and this Court was able to smell the rot, in the manner in which the investigation was conducted in this case. Taking advantage of lackadaisical manner, in which the police was investigating the case, the above said John Moses Antony managed to get bail before the Judicial Magistrate No.1 (FAC), Madurai, about which, reference has been made in the order passed by this Court on 29.08.2018.
7.This Court cannot turn a blind eye to a case of a this nature, where the interest of several depositors are involved. The latest status report filed by the fourth respondent clearly points out the fact that there will be several depositors, who have lost their money to the above said John Moses Antony. This Court is totally disappointed with the manner in which, this case has been investigated so far. This case needs to be further investigated by a Specialised Agency, in order to bring out the entire truth and to effectively proceed against the accused persons.
8.In the result, the investigation is transferred to the file of the the Superintendent of Police, CBCID, Madurai. The Superintendent of Police, CBCID, Madurai is directed to allot this case to an Inspector of Police, who is well versed with online / cyber crimes, since the deposits have been received in this case by the accused person through online. The Inspector of Police, to whom this case is allotted, shall conduct further investigation in this case by examining all the witnesses / victims. It is also left open to the Police Officer to file an appropriate application for cancellation of bail against the above said accused person, if he finds that there are supervening circumstances and custody of the person is wanted for effective investigation of the case.
The Inspector of Police, who is allotted the case, shall file a regular status report before the Superintendent of Police, CBCID, Madurai and the Superintendent of Police, CBCID, Madurai is directed to strictly monitor the investigation. The investigation shall be conducted effectively and shall be completed as expeditiously as possible. The concerned Police Officer shall identify the victims and shall take steps to attach the properties purchased through the ill gotten money and also take steps to disburse the money to the victims.
9.Further, the fourth respondent is directed to hand over the case diary to the Superintendent of Police, CBCID, Madurai within a period of one week from the date of receipt of copy of this order. Till further report is filed before the Court below, by the CBCID, the proceedings in CC No.222 of 2010 shall be kept in abeyance by the Court below.
10.With the above directions, this criminal original petition is disposed of. Consequently, CrlMP(MD)No.3250 of 2018 is closed. Sd/ Assistant Registrar(CO) /True Copy/ Sub Assistant Registrar(CS-I) To
1. The Judicial Magistrate-I, Madurai.
2. The Commissioner of Police, Madurai City, Madurai District.
3. The Superintendent of Police, CBCID, Madurai.
4.The Inspector of Police (Crime), E-2, Mathichiyam Police Station, Madurai.
5.The Inspector of Police, City Crime Branch, Madurai.
Copy to:
The Section Officer, Criminal Section, Madurai Bench of Madras High Court, Madurai.(2 Copies) +1 cc to Mr.K.Sundaravel,Advocate,SR.93451 +1 cc to Mr.J.Jeyakumaran,Advocate,SR.No.93718 dsk SS/SKN/SAR 1/10.12.2018/13P/10C order made in Crl.O.P.(MD)No.6776 of 2018 31.10.2018