Senthilkumar v. P.Jeyaraj

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 26.11.2020 CORAM :

THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN Crl.O.P.(MD)Nos.20806 of 2016 and Crl.MP(MD)Nos.10590 & 10591 of 2016 Senthil Kumar ... Petitioner/Accused Vs.

P.Jeyaraj ... Respondent/Complainant Prayer: Criminal Original Petition filed under section 482 of Criminal Procedure Code, to quash the proceedings initiated by the respondent herein u/s 138 r/w 142 of Negotiable Instruments Act in C.C.No.29 of 2013 on the file of the learned Judicial Magistrate No.I, Tirunelveli, Tirunelveli District.

For Petitioner : Mr.A.Thiruvadikumar For Respondent : Mr.A.Sivaji

O R D E R

This petition has been filed to quash the proceedings in C.C.No.29 of 2013 on the file of the learned Judicial Magistrate No.I, Tirunelveli, Tirunelveli District.

2.The case of the prosecution is that the petitioner received a sum of Rs.70,000,00/- from the respondent in order to purchase land to him. Thereafter, the petitioner neither purchase the land nor repay the amount. As per repeated demanding of the respondent, the petitioner issued cheque towards re-payment of the said amount and the same was returned for the reason 'insufficient fund'. Therefore, the respondent initiated proceedings under Section 138 of Negotiable Instrument Act as against the petitioner before the learned Judicial Magistrate No.I, Tirunelveli, Tirunelveli District and the same has been taken cognizance in C.C.No.29 of 2013. As against the same, the petitioner preferred this present petition. 3.

The learned Counsel appearing for the petitioner would submit that the petitioner is an innocent person and he has not committed any offence as alleged by the prosecution. Without any base, the defacto complainant initiated proceedings under Section 138 of Negotiable Instrument Act, before the learned Judicial Magistrate No.

petitioner and the same has been taken cognizance in C.C.No.29 of 2013.

4.Heard Mr.A.Thiruvadikumar, learned counsel appearing for the petitioner and Mr.A.Sivaji, learned counsel appearing for the respondent.

5. 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.

6.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 appellant-C.B.I., and the defence put-forth by the respondent, led 2/4

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."

7.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.

8. In view of the above discussion, this Court is not inclined to quash the proceedings in C.C.No.29 of 2013 on the file of the learned Judicial Magistrate Court No.I, Tirunelveli, Tirunelveli District. The petitioner is at liberty to raise all the grounds before the trial Court. Considering the age of the petitioner, the personal appearance of the petitioner is dispensed with and he shall be represented by a counsel after filing appropriate application. However, the petitioner shall be present before the Court at the time of furnishing of copies, framing charges, questioning under Section 313 Cr.P.C. and at the time of passing judgment. The trial Court is directed to complete the trial within a period of six months from the date of receipt of copy of 3/4

this Order.

9. Accordingly, this criminal original petition is dismissed. Consequently, connected miscellaneous petitions are also closed. Sd/- Assistant Registrar(T & P) // True Copy // / /2020 Sub Assistant Registrar(CS) dss To The Judicial Magistrate NO.I.

Tirunelveli, Tirunelveli District.

+1 CC to M/s.A. SIVAJI, Advocate ( SR-23074[F] dated 27/11/2020 ) Crl.O.P.(MD)Nos.20806 of 2016 and Crl.MP(MD)Nos.10590 & 10591 of 2016 26.11.2020 VR(CO) TR(07.12.2020) 4P 3C 4/4