Crl.O.P.No. 7302 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.08.2021
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
Crl.O.P.No. 7302 of 2016
and Crl.M.P.No. 3818 of 2016
Jyoti Poddar
Director,
M/s. Environ Energy Corporation Pvt. Ltd.,
No.60-A, Diamond Harbour Road,
Thakurpukur, Kolkata - 700 063 ... Petitioner
Vs
M/s. Phocos India Solar Pvt., Limited,
Represented by its Managing Director Kathiravan,
... Respondent
Criminal Original Petition filed under Section 482 of Cr.P.C, praying
to call for the records in STR.No.12659 of 2011 on the file of the Judicial
Magistrate No.II, Puducherry and quash the same.
For Petitioner : Mr.V.Ravi
For Respondent : No Appearance
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https://www.mhc.tn.gov.in/judis/
Crl.O.P.No. 7302 of 2016
ORDER
This petition has been filed to quash the proceedings in STR.No.12659 of 2011 on the file of the Judicial Magistrate No.II, Puducherry, Chennai, thereby taken cognizance for the offences under Section 200 of CrPC., r/w Section 138 of the Negotiable Instruments Act, 1881 as against this petitioner.
2. The learned counsel appearing for the petitioner would submit that the petitioner is innocent and he has not committed any offence as alleged by the prosecution. Without any base, the respondent/complainant filed a complaint under Section 200 of CrPC., read with Section 138 of the Negotiable Instruments Act, 1881 before the learned Judicial Magistrate No.II, Puducherry, as against the petitioner and the same has been taken cognizance in STR.No.12659 of 2011 on the file of the Judicial Magistrate No.II, Puducherry. Hence he prayed to quash the same.
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3. Heard Mr.V.Ravi, learned counsel appearing for the petitioner and perused the materials available on record.
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.3/8
https://www.mhc.tn.gov.in/judis/ Crl.O.P.No. 7302 of 2016
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 appellant-C.B.I., and the defence put-
forth by the respondent, led us to a conclusion 4/8 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No. 7302 of 2016 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 5/8 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No. 7302 of 2016 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 STR.No.12659 of 2011 on the file of the Judicial Magistrate No.II, Puducherry. 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 6/8 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No. 7302 of 2016 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 this Order.
8. Accordingly, this criminal original petition is dismissed.
Consequently, connected miscellaneous petition is also closed.
02.08.2021 Internet:Yes Index:Yes/no msm 7/8 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No. 7302 of 2016 V.BHAVANI SUBBAROYAN, J.
msm To The Judicial Magistrate No.II, Puducherry.
Crl.O.P.No. 7302 of 2016 and Crl.M.P.No. 3818 of 2016 02.08.2021 8/8 https://www.mhc.tn.gov.in/judis/