Madras High Court
C.Sundaram vs State Of Represented By on 27 January, 2021
Crl.R.C.Nos.1235, 1236, 1229 & 1268 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 27.01.2021
CORAM:
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
Crl.R.C.Nos.1235, 1236, 1229 & 1268 of 2020
and
Crl.M.P.Nos.8613, 8614, 8655, 8656, 8660, 8662, 8881 & 8882 of 2020
C.Sundaram ...Petitioner in Crl.R.C.No.1229 of 2020
1. C.Kumar
2. P.Palanisamy
3. P.Subramani
4. G.Thukka Gounder
5. P.Kumar
6. G.Kandasamy
7. T.Nagarathinam
8. P.Prakash
9. C.Sundaram
10. C.Rajendran ...Petitioners in Crl.R.C.No.1235 of 2020
1. C.Kumar
2. P.Kandasamy ...Petitioners in Crl.R.C.No.1236 of 2020
https://www.mhc.tn.gov.in/judis/
Crl.R.C.Nos.1235, 1236, 1229 & 1268 of 2020
1. P.Kandasamy
2. T.Manikandan
3. V.Elumalai ...Petitioners in Crl.R.C.No.1268 of 2020
-Vs-
State of Represented by
Deputy Superintendent of Police,
EOW - II, Salem.
...Respondents in all Crl.R.C. Petitions.
PRAYER in Crl.R.C.No.1229 of 2020: This Criminal Revision case is
filed under Sections 397 read with Section 401 of Cr.P.C. to set aside the
order dated 21.10.2020 passed by the learned Special Judge under TNPID
Act, Chennai in Crl.M.P.No.639 of 2014 in C.C.No.36 of 2013 pending on
the file of the Learned Special Judge under TNPID Act, Coimbatore.
PRAYER in Crl.R.C.No.1235 of 2020: This Criminal Revision case is
filed under Sections 397 read with Section 401 of Cr.P.C. to set aside the
order dated 21.10.2020 passed by the learned Special Judge under TNPID
Act, Chennai in Crl.M.P.No.942 of 2014 in C.C.No.35 of 2013 pending on
the file of the Learned Special Judge under TNPID Act, Coimbatore.
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Crl.R.C.Nos.1235, 1236, 1229 & 1268 of 2020
PRAYER in Crl.R.C.No.1236 of 2020: This Criminal Revision case is
filed under Sections 397 read with Section 401 of Cr.P.C. to set aside the
order dated 21.10.2020 passed by the learned Special Judge under TNPID
Act, Chennai in Crl.M.P.No.640 of 2014 in C.C.No.36 of 2013 pending on
the file of the Learned Special Judge under TNPID Act, Coimbatore.
PRAYER in Crl.R.C.No.1268 of 2020: This Criminal Revision case is
filed under Sections 397 read with Section 401 of Cr.P.C. to set aside the
order dated 21.10.2020 passed by the learned Special Judge under TNPID
Act, Chennai in Crl.M.P.No.943 of 2014 in C.C.No.35 of 2013 pending on
the file of the Learned Special Judge under TNPID Act, Coimbatore.
For Petitioners : Mr.R.Baskar
( in all R.C. Petitions)
For Respondent : Mr.R.Suryaprakash
( in all Crl.R.C.Petitions)
COMMONORDER
The respondent Police registered a case against the petitioners and
others in Crime No.25 of 2012 on the file of the respondent Police for the
offences under Sections 420, 406 r/w 120 (B) and 107 IPC and under
Section 5 TNPID Act, 1997. After investigation, the respondent Police laid
a charge sheet before the learned Special Court, TNPID Act, Coimbatore.
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2. The learned Special Judge after completing the formalities taken
the charge sheet on file in C.C.No.35 of 2013 and the said case was pending
before the learned Special Judge for framing charges and at that stage, the
petitions were filed by the petitioners under Section 239 of Criminal
Procedure Code to discharge from the said case. The Special Judge after
enquiry dismissed the petitions. Challenging the same, the petitioners have
filed the present Revision Cases before this Court.
3. The learned counsel for the petitioners would submit that there is
no triable case as against the petitioners. The petitioners filed petitions
under Sections 239 C.R.PC. on 02.03.2014 and 09.06.2014 before the Trial
Court in Crl.M.P.Nos.943, 942, 640, 639 of 2014 to discharge all from the
said case. The respondent filed their counters. Thereafter, the arguments
were heard by the learned trial Judge on 23.06.2015 and arguments were
advanced on both sides. Thereafter, the case was posted for orders on the
discharge petitions.
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4. While so, on 16.07.2015, the learned trial Judge directed the
respondent Police to file an application for further investigation and allowed
the same on the very same date, without even sending notice to the
petitioners. Subsequently when the petitioners' counsel informed the trial
Court that the discharge petitions are posted for orders, the learned Trial
Judge adjourned the petitions stating that the pronouncement of the orders
on the discharge petition has been postponed, since further investigation has
been ordered in the case. He will not pass orders on the discharge petitions
till further report is filed under Section 173 (8) of C.R.PC.
5. Though it is between the trial Court and the respondent with regard
to the further investigation, the subsequent act of the learned Judge in
postponing the pronouncement of order on the discharge petitions until
further report is filed under Section 173(8) of Cr.P.C, is illegal. Therefore,
the petitioners filed petitions before this Court seeking directions of this
Court to direct the trial Court to dispose of the discharge petitions filed by
the petitioners in Crl.M.P.Nos.943, 942, 640, 639 of 2014. This Court vide
its order dated 23.09.2015, dismissed the said petitions in Crl.O.P.No.23894
to 23897 of 2015 observing that the order of the Trial Court in not passing
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any order on the discharge applications till filing of the Supplementary
Report cannot be faulted. After dismissal of the said petitions by this Court
petitioners were patiently waiting for the respondent Police to file
Supplementary Report.
6. While so, the learned Special Judge, Coimbatore has directed the
petitioners to advance their arguments on the discharge petitions without
even adverting to the orders passed by this Court dated 23.09.2015 and also
earlier order passed by the predecessor of the Trial Court for further
investigation under section 173 (8) of C.R.PC. The trial Court without
looking into the records of the case, dismissed the discharge petitions filed
by the petitioners in Crl.M.P.Nos.943, 942, 640, 639 of 2014 on 21.10.2020.
7. He would further submit that once the predecessor of Trial Judge
ordered for further investigation and stopped to pronounce order in
discharge petitions and this Court also while dismissing the petitions
observed that the trial Court shall pass orders after filing the supplementary
Report, the successor of the Special Court, without receiving the final
Report and looking into the order of the predecessor with the discharge
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petition filed by the petitioners, dismissed the same. Therefore, the orders
passed by the learned Trial Judge has to be set aside.
8. Further, he would submit that the petitioners are only the agents to
the second accused and the first accused is a proprietor. These petitioners
are only the collecting agents and the same is established even as per the
evidence of the witnesses. It reveals that these petitioners are the collecting
agents and they canvassed the depositors for A1 & A2 and they have not
committed any offence under Indian Penal Code. The predecessor to the
Trial Judge directed to conduct further investigation. However, the Trial
Judge, without receiving the report of the further investigation, passed the
order with the available materials and therefore, the same warrants
interference of this Court.
9. The learned Government Advocate for the respondent would
submit that though the Predecessors to the trial Judge directed to conduct
the further investigation and file a supplementary report, they filed the final
report in 09.08.2016 itself i.e. even before passing the orders in the
discharge petitions. The order in the discharge petitions was passed only on
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Crl.R.C.Nos.1235, 1236, 1229 & 1268 of 2020
21.10.2020. The final report was represented and the final report was very
much available with the Court. Further he would submit that though the
petitioners are being described as the agents, the statement of witnesses
clearly shows that the petitioners themselves stated that they are the partners
of the A1 Company and canvassed the depositors and they have also signed
in certain documents and the witnesses also have stated that they do not
know the difference between the agent and the partner. However, the
petitioners have described as partners in the A1 company and they have
canvassed the witnesses. Even further investigation report also reveals that
the petitioners are involved in the offence and therefore, the trial court
rightly dismissed the petitions and hence, there is no merit in the revision
and the same are liable to be dismissed.
10. Heard. Perused the records.
11. Admittedly the respondent Police registered the case against the
petitioners and others. These petitioners have been shown as A4 to A6 and
after the investigation, the respondent police laid a charge sheet against the
petitioners along with other accused for the offences punishable under
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Section 420, 406 r/w 120 b and 107 IPC also Section 5 of the TNPID Act.
The Special Judge took the charge sheet on file in C.C.No.35 of 2013 and
after completing the formalities, the matter was pending for framing
charges. At that stage, the petitioner approached with the said petitions and
the same was initially heard and the matter was listed for orders.
Subsequently, the trial Court directed the respondent to file a petition for
further investigation and ordered for further investigation. Since further
investigation was ordered, the Trial Court stated that no orders would be
passed in the discharge petitions till the report of the further investigation is
received. Challenging the said order, the petitioners approached this Court
in Crl.O.P.No.23897 of 2015 and this Court also dismissed the petition and
thereafter, before filing of the supplementary report, the Successor of the
trial Court passed the order in the discharge petitions and dismissed the
same.
12. The main contention of the learned counsel for the petitioners is
that the predecessor had found that there was no material to frame charge
and direction for further investigation and the successor, without receiving
further investigation report, dismissed the petition on the existing materials
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and therefore, the same is illegal. Further, he would submit that the
petitioners are only the collecting agents and they are not held liable under
Section 5 of the TNPID Act. No material to show that the petitioners had
cheated the depositors, which the trial Court failed to consider and
dismissed the petition. The trial Court ought to have decided the petitions
after receipt of the report of the further investigation.
13. Per contra, the learned Government Advocate would submit that
further investigation was ordered placed reliance on the following
Judgments;
(i) Reported in 2013 - 2 L.W. (Crl) 212 in a case between
Aruna and others Vs. State of Tamil Nadu by Deputy
Superintendent of Police. EOW-II, Madurai and another.
(ii) In a case between S.Thamayanthi Vs. State of Tamil
Nadu, DCB, Theni.
(iii) Reported in (2010) 1 MLJ (Crl). 742 in the case of
Prasannadevi Vs. State of Tamil Nadu, Rep. by Deputy
Superintendent of Police, (Economic Offences wing),
Cuddalore.
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Crl.R.C.Nos.1235, 1236, 1229 & 1268 of 2020
(iv) Orders passed by the Madurai Bench of Madras High
Court dated 30.07.2012 passed in Crl.O.P.No.(MD).Nos.4890
of 2011 & 4892 of 2011
14. The Trial Judge directed further investigation only on 16.07.2015
and after investigation, the respondent police filed supplementary report on
09.08.2016 and the trial Court dismissed the discharge petition only on
25.10.2020, four years after filing of the petition. Though the final report
was filed before the Special Court and the same was returned for some
reasons, subsequently, the same was represented.
15. The records shows that the petitioners filed a discharge petition
under Section 239 Cr.P.C. on 02.03.2014 and the respondent filed counter
on 13.09.2014 and the trial Judge heard the matter on 23.06.2015 and the
case was reserved for orders on 06.07.2015. Originally the supplementary
report was filed on 09.08.2016. Though it was returned, subsequently it was
represented and again returned, after that it was finally handed over to the
Court on 06.01.2021. After passing of order of further investigation, the
petitioners filed Crl.O.P.No.23897 of 2015 before this Court. Subsequently,
Officer of the Special Court was transferred and the Successor took up
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the matter and heard further and dismissed the petitions for discharge on
21.10.2015.
16. A perusal of the original final report and also subsequent
supplementary charge sheet, it is seen that the first accused is the Ms.Jenith
Herbals and according to the prosecution, the accused induced the
depositors to deposit the money in the Jenith Herbals by falsely representing
that the depositors get one and a half time of the deposit amount within 30
days. They have fraudulently induced the innocent people to deposit the
money in M/s.Jenith Herbals. Since the accused A3 to A18 including the
petitioners herein are the residents of the same area, the people in and
around Rasipuram believed their representation and deposited a sum of
Rs.2,92,47,500/- and they were cheated and the total deposit comes around
Rs.16,52,18,000/- and when the depositors visited the office of the Jenith
Herbals, it was found locked and the accused persons could not be
contacted. On receiving the said complaint, the Superintendent of Police
directed the District Crime Branch, Salem to register the case and
investigate. The Inspector of Police, DCB, Salem registered the case in
DCB, Salem in Crime No.24 of 2012 under Sections 420 IPC and Section 5
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of Prize Chits and Money Circulation Scheme (Banning) Act 1978 and
took up the investigation. Subsequently, the case was transferred to EOW-
II, Salem as per the order of Inspector General of Police, EOW-II, Chennai-
40 in Crime No.C2/006190/IGP/EOW/2012 dated 18.06.2012. The Deputy
Superintendent of Police, EOW-II,Salem registered the case. According to
the prosecution, 1st accused is an unregistered Financial Establishment. The
accused 3 to 18 joined with the second accused as the agents, but A2 made
them agents cum partner because they were local persons who alone can
convince the innocent who have trust over the A1 Establishment. The
accused 3 to 18 were receiving huge share of the investment because of the
day-to-day administration of M/s.Jenith Herbals. The first accused is the
financial establishment. The investigation further reveals that A1 to A18
initially collected deposits assuring to repay one and a half time of the
money within 30 days. The accused 3 to 18 as the canvassing agents
dishonestly induced the depositors and collected the deposit money. The
accused 3 to18 were promised by A1 that they would be as partners of A2 in
the day-to-day administration of the A1 establishment and collected the
deposit. The accused 2 to 18 disbursed the amount under the administration
of A1. The accused made innocent people to believe the M/s.Jenith Herbals
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depositors to remit the amount in the account of A1 establishment and for
the matured amount. Whenever the deposits challan are shown where the
petitioner is to the statement of account regarding the amount deposited and
deposit the cheque for the matured amount. Therefore, the innocent
depositors totally believed the accused collected crores of money, deposited
the statements of account contained the date of deposit amount and date of
maturity which was signed by A2 on plain paper. The allegation against the
accused 2 to 18 including the petitioners is that they falsely represented that
M/s.Jenith Herbals was involved in Herbal business and only due to
shortage of money, money was collected from the depositors. They went
further in offering repayment of two times of deposits amount after expiry
of 45 days. Further allegation against the 2nd accused along with accused 3
to 18 is that they falsely represented that A1 is a genuine establishment and
they canvassed that the funds are deposited for cultivating the medicinal
plants and export the same and assured to repay one and a half time within
30 days and 45 days. In this matter for trial, prima facie there is allegation
against these petitioners. The petitioners introduced themselves as partners
of the first accused Jenith Herbals and collected deposits. Therefore,
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whether they have described as partners and falsely made a promise to the
witnesses are the matter for trial and it cannot be decided at this stage.
17. It is settled proposition of law, while deciding petition under
Section 239 Cr.P.C., the Court has to see the final report filed by the
respondent police u/s.173 Cr.P.C and the Court need not conduct roving
enquiry on the materials. Further the Court has to see the materials
produced by the prosecution and not the defence taken by the accused and
the document produced.
18. Therefore, a reading of the materials available on records prima
facie case is made out that there are incriminatory materials available
against the petitioners and to support the allegations some of the witnesses
have given the statement under Section 161 of Cr.P.C. Therefore, this Court
finds that there is enough materials available before the Court to frame the
charges and proceed further. The defence taken by the petitioners can be
decided only after completing the trial and not at this stage. With regard to
the passing of the order in the discharge petitions without receiving the
supplementary final report is concerned, the further investigation is only for
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additional materials for further strengthening the case of the prosecution.
The Predecessor of the Court while ordering for further investigation has
not stated that there is no material to proceed further. Therefore, the Court
would feel that there are 114 investors involved in this case and the main
allegation is that they intended to make wrongful gain of money to larger
extent by adopting an illegal method from innocent public and they have
started the Company by a name and style of M/s.Jenith Herbal by
misrepresenting that the petitioners are partners to A1 Company. In the
name of the said Company, they have tried to get a good project with
molafide intention. Therefore, there is no illegality or infirmity in the order
passed by the trial Court and whatever the defence raised by the petitioners,
the same can be decided after the trial and not at this stage. Therefore, this
Court finds that there is no merit in the Revision petitions and the same are
liable to be dismissed. Accordingly, these Criminal Revision Petitions are
dismissed. Consequently, connected miscellaneous petitions are closed.
27.01.2021
Index : Yes/No
kmm
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Crl.R.C.Nos.1235, 1236, 1229 & 1268 of 2020
To
1. The Special Judge under TNPID Act, Chennai.
2. The Special Judge under TNPID Act, Coimbatore.
3. The Deputy Superintendent of Police,
State of Tamil Nadu,
EOW - II, Salem.
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Crl.R.C.Nos.1235, 1236, 1229 & 1268 of 2020
P.VELMURUGAN, J.,
kmm
Crl.R.C.Nos.1235, 1236, 1229 & 1268 of 2020
and
Crl.M.P.Nos.8613, 8614, 8655, 8656, 8660, 8662, 8881 & 8882 of 2020
27.01.2021
https://www.mhc.tn.gov.in/judis/
