Thangappan v. The Inspector Of Police

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 10.02.2022 CORAM :

THE HONOURABLE Mr. JUSTICE G.K.ILANTHIRAIYAN and Crl.M.P.(MD)No.11436 of 2021 1.Thangappan 2.Muthumari ... Petitioners Vs.

1.State represented by The Inspector of Police, Thoothukudi Central Police Station, Thoothukdi District.

(Crime No.326 of 2021) 2.Ramesh ... Respondents Prayer : Criminal Original Petition filed under Section 482 of the Code of Criminal Procedure, to call for the First Information Report pertaining to the case in Crime No.326 of 2021 on the file of the first respondent and quash the same.

For Petitioners : Mr.S.Ramasamy For R1 : Mr.B.Thanga Aravindh Government Advocate (Criminal side) For R2 : Mr.K.Veilmuthu

ORDER

This petition has been filed to call for the case in Crime No.326 of 2021 on the file of the first respondent and quash the same.

2.The case of the prosecution is that the petitioners who are the practicing advocate at Thoothukudi, were running a lorry booking office. They asked the second respondent / defacto complainant to invest money in the petitioners' business and in return they will give share in the profit to the defacto complainant. On believing the words of the petitioners, the defacto complainant and his friends were invested a sum of Rs.50,00,000/- and the petitioners refused to pay back the amount or shares in the profits. When the defacto complainant was questioned the same, the petitioners have 1/4

trespassed into the defacto complainant's office, caused damages, attacked him criminally and took away 5 sovereigns of gold jewels. Hence, the complaint.

3.The learned Counsel appearing for the petitioners would submit that the petitioners are innocent and they have not committed any offence as alleged by the prosecution. He would further submit that counter case has also been registered in Crime No.325 of 2021 pending on the file of the first respondent. Hence, he prayed to quash the same.

4.The learned Government Advocate (crl.side) would submit that the investigation is almost completed and the respondent police are about to file the final report before the concerned court.

5. Heard both sides and perused the materials available on record.

6. It is seen from the First Information Report that there are specific allegation as against the petitioners, which has to be investigated. Further the FIR is not an encyclopedia and it need not contain all facts. Further, it cannot be quashed in the threshold. This Court finds that the FIR discloses prima facie commission of cognizable offence and as such this Court cannot interfere with the investigation. The investigating machinery has to step in to investigate, grab and unearth the crime in accordance with the procedures prescribed in the Code.

7.It is also relevant to rely upon the judgment of the Hon'ble Supreme Court of India passed in Crl.A.No.255 of 2019 dated 12.02.2019 - Sau. Kamal Shivaji Pokarnekar vs. the State of Maharashtra & ors., as follows:- "4. The only point that arises for our consideration in this case is whether the High Court was right in setting aside the order by which process was issued. It is settled law that the Magistrate, at the stage of taking cognizance and summoning, is required to apply his judicial mind only with a view to taking cognizance of the offence, or in other words, to find out whether a prima facie case has been made out for summoning the accused persons. The learned Magistrate is not required to evaluate the merits of the material or evidence in support of the complaint, because the 2/4

Magistrate must not undertake the exercise to find out whether the materials would lead to a conviction or not.

5. Quashing the criminal proceedings is called for only in a case where the complaint does not disclose any offence, or is frivolous, vexatious, or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same. It is not necessary that a meticulous analysis of the case should be done before the Trial to find out whether the case would end in conviction or acquittal. If it appears on a reading of the complaint and consideration of the allegations therein, in the light of the statement made on oath that the ingredients of the offence are disclosed, there would be no justification for the High Court to interfere.

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9. Having heard the learned Senior Counsel and examined the material on record, we are of the considered view that the High Court ought not to have set aside the order passed by the Trial Court issuing summons to the Respondents. A perusal of the complaint discloses that prima facie, offences that are alleged against the Respondents. The correctness or otherwise of the said allegations has to be decided only in the Trial. At the initial stage of issuance of process it is not open to the Courts to stifle the proceedings by entering into the merits of the contentions made on behalf of the accused. Criminal complaints cannot be quashed only on the ground that the allegations made therein appear to be of a civil nature. If the ingredients of the offence alleged against the accused are prima facie made out in the complaint, the criminal proceeding shall not be interdicted."

8.In view of the above discussion, this Court is not inclined to quash the First Information Report. Hence this Criminal Original Petition stands dismissed. However, the first respondent is directed to complete the investigation in both the Crime Nos.325 of 2021 and 3/4

326 of 2021 following the procedure laid down in the Police Standing Order and file a final report within a period of twelve weeks from the date of receipt of copy of this order, before the jurisdiction Magistrate.

Consequently, connected miscellaneous petition is also closed.

Sd/- Assistant Registrar (AE) // True Copy // / /2022 Sub Assistant Registrar(CS) cp Note :

In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned. To 1.The Inspector of Police, Thoothukudi Central Police Station, Thoothukdi District.

2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

+1 CC to M/s.K.VEILMUTHU, Advocate ( SR-5632[F] dated 11/02/2022 ) 10.02.2022 SB(CO) GC(04.03.2022) 4P 4C 4/4