Madras High Court
Sri Kuberan Emu Farms vs The Inspector Of Police on 26 July, 2021
CRL.O.P.No.11392 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.07.2021
CORAM:
THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR
CRL.O.P.No.11392 of 2021
and
Crl.M.P.No.6631 of 2021
1.Sri Kuberan EMU Farms
No.39, K.S.R. Building
Royapuram Main Road
Tirupur rep.by A.G.Kumar.
2.A.G.Kumar ... Petitioners
Versus
The Inspector of Police
Economic Offence Wing
II Unit, Coimbatore. ...Respondent
PRAYER: Criminal Original Petition filed under Section 482 of the
Code of Criminal Procedure, to set aside the order passed in
CMP.No.568 of 2021 in C.C.No.3/2017 dated 12.03.2021 on the file
of the Special Court under TNPID Act, in Coimbatore consequently
permit the petitioner to cross examine the prosecution witness 1 to
17.
Page No.1 of 14
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CRL.O.P.No.11392 of 2021
For Petitioners : Mr.C.Deivasigamani
For Respondent : Mr.A.Damodaran
Government Advocate (Crl.Side)
ORDER
This petition has been filed to set aside the order passed
in CMP.No.568 of 2021 in C.C.No.3/2017 dated 12.03.2021 on the
file of the Special Court under TNPID Act, in Coimbatore, and
consequently permit the petitioner to cross examine the prosecution
witnesses 1 to 17.
2. The petitioner accused in C.C.No.3 of 2017 has filed
the petition under Section 311 Cr.P.C. to recall P.Ws.1 to 17 in the
case, in Crl.M.P.No.568 of 2021. The trial court by an order dated
12.03.2021 dismissed the petition. Hence the above Petition.
3. The contention of the petitioner is that he has not
cross examined P.Ws.1 to 17 and further during the examination of
chief of P.Ws.1 to 17 at that time, petitioner not engaged any counsel
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CRL.O.P.No.11392 of 2021
and hence he was denied the fundamental right and the case has been
proceeded in the absence of any legal assistance which is mandatory.
For that reason, he has filed the above petition.
4. He engaged the present counsel on 24.11.2017. His
counsel Mr.Deivasigamani on 24.11.2017 filed his appearance on
that date and from that date onwards he is defended by his counsel,
cross examined the witnesses and participating in the trial. Totally,
in this case, 43 witnesses were examined and the last witness on the
side of the prosecution was examined on 22.02.2021 and thereafter
witness cross examined on 05.03.2021. On the same day, accused
was questioned under section 313 Cr.P.C. Meanwhile on the same
date, on completion of chief examination of Investigating officer,
the petitioner filed the petition to recall the witnesses P.Ws.1 to 17.
The court seal confirms the same. Thereafter C.M.P.No.568 of 2021
assigned and listed the petition on 12.03.2021. Meanwhile on
05.03.2021 after examining the Investigating Officer the evidence
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CRL.O.P.No.11392 of 2021
on the side of the prosecution was closed. Questioning of the
accused under section 313 Cr.P.C., completed. Crl.M.P.No.568 of
2021 was kept pending and on the next hearing date on 12.03.2021 it
was dismissed and the case was posted for defence side evidence.
5. Further the petitioner produced the adjudication of the
court as well as the deposition copy of the witnesses P.Ws.1 to 17
and petitioners answers to the 313 question. From the adjudication,
it is seen that on 04.05.2017 charge sheet taken on file and C.C.No.
3 of 2017 assigned on 05.06.2017 summons sent to the accused.
On 05.07.2017 the accused appeared and copies under section 207
Cr.P.C., furnished. Further case was adjourned to 28.07.2017 and on
that day charges were framed and summons were issued to the
witnesses. On 10.08.2017, P.Ws1-5, on 06.09.2017 P.Ws.6 to 10, on
04.08.2017 P.Ws.11 to 14 and on 07.11.2017 P.Ws.15 to 17 were
examined and Exs.P1 to P52 marked. These exhibits consists of
complaints, receipts issued by A1, cheques and other documents.
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CRL.O.P.No.11392 of 2021
The petitioner denies these documents and hence these exhibits are
to be necessarily confronted with the witnesses.
6. He further submitted that from 24.11.2017 after
engaging this counsel of choice cross examination of witnesses done
without any delay. The lower court failed to consider these aspects
and had given a finding as though Advocate Mr.Kannadasan was
engaged by the petitioner prior to engaging, Advocate
Mr.Deivasigamani on 24.11.2017. The said Kannadasan is not a
counsel who was engaged after receipt of copies under section 207
Cr.P.C. He might have appeared at the initial stage not after 207
Cr.P.C., the mandate of the trial court is to find out whether accused
has got the means to engage his counsel of his choice to defend him.
Otherwise he has to follow 304 Cr.P.C., and nominate a legal aid
counsel. This has not been done in this case. Hence the petitioner
had been denied his fundamental right of being represented by an
Advocate of his choice.
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CRL.O.P.No.11392 of 2021
7. The learned Public Prosecutor submitted that the
petitioner in this case is A2, the financial establishment is A1
Kuberan Emu Farms. In this case totally 41 depositors and a sum of
Rs.62,51,000/- had been misappropriated and cheated by the
petitioner. The petitioner received the amount from the depositors
and misappropriated the same for his own benefits, case registered
and on completion of investigation, charge sheet filed against the
petitioner for the offences under sections , 406, 420 of IPC and
Section 5 of TNPID Act. P.Ws.1 to 17 are the depositors who hail
from various places ie. Tirupur, Dindugal, Sivagangai districts and
recalling them at this stage after 4 years would amount to harassing
them. P.Ws.1 to 17 not only lost their money but also peace and
now by recalling them, they will be subjected to harassment.
8. Further he submitted that in the lower court order, the
trial judge had observed that on scanning the record , the petitioner
accused had engaged one Mr.Kannadasan Advocate but in the
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CRL.O.P.No.11392 of 2021
adjudication there is no mention about the presence of his advocate
after 207 Cr.P.C.
9. On the specific plea of the petitioner that the
petitioner was denied Assistance of an Advocate of his choice, this
Court had sought a report from the trial Judge. The trial Court in
D.No.523 of 2021 dated 19.07.2021 has submitted a report. The
report is extracted hereunder as follows:
“1. Mr.M.Kannadasan and M.Deenadayalan,
Advocates filed memo of appearance on 24.10.2016
along with bail application in Cr.M.P.No.2937 of
2016, which was dismissed on 07.11.2016.
2. Mr.M.Kannadasan and M.Deenadayalan,
Advocates filed second bail application in
Cr.M.P.No.3334 of 2016, which was allowed on
09.12.2016.
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CRL.O.P.No.11392 of 2021
3. The said counsels Mr.M.Kannadasan and
M.Deenadayalan, Advocates filed copy application
in C.A.No.370 of 2016 on 12.12.2016.
4. Mr.M.Kannadasan and M.Deenadayalan,
Advocates filed an application to relax the
conditions imposed in the bail order in
Cr.M.P.No.521 of 2017 on 16.02.2017, which was
allowed on 24.02.2017.
5. In the mean time, the final report was
taken on file on 04.05.2017 and posted to
05.06.2017 for the appearance of the accused.
6. Mr.M.Kannadasan and M.Deenadayalan,
Advocates also filed an application to relax the
conditions imposed in the bail order in
Cr.M.P.No.1639 of 2017 on 16.05.2017, which was
allowed on 29.05.2017.
7. On 05.06.2017, the accused A.G.Kumar
was present.
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CRL.O.P.No.11392 of 2021
8. 05.07.2017, the accused received free
copies under Sec.207 of Cr.P.C.
9. 28.07.2017, the charges were framed.
10. 10.08.2017, PW1 to PW5 were examined.
11. 06.09.2017, the accused was absent.
Sec.317 of Cr.P.C. application filed by
Mr.M.Kannadasan, Advocate was allowed in
Cr.M.P.No.2740 of2017. PW6 to PW10 were
examined in the presence of the said counsel.”
10. From the report it is seen that the petitioner had engaged
an Advocate during initial stage of his arrest and thereon, in bail
application, he had represented and provided legal assistance to the
petitioner/accused. The name of the present counsel who filed his
memo of appearance on 24.11.2017 is also found in the report. It is
seen that the previous Advocate as well as the petitioner were
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CRL.O.P.No.11392 of 2021
present during the in the hearing dates throughout when PW1 to
PW17 were examined and at that time the petitioner or his erstwhile
counsel were present. From the evidence it is seen that it has been
reported no cross examination. Further PW1 to PW17 are the
depositors. All the witnesses have clearly stated that they knew the
petitioner and they had approached to him in his office and on his
representation they made the deposits. During 313 Cr.P.C.
questioning, the answer given for the evidence of these witnesses is
that the petitioner has not received any money and that the evidence
are false evidences, he has denied having met them and received the
deposits. This has been the answer to all the witnesses PW1 to
PW17. In this case PW1 to PW39 are the depositors and the
petitioner firm had a branch at Dindugal, through his agent one
Sekar, he had collected deposits. The cross examination conducted
with all other depositors PW18 to PW39. PW40 is the building
owner, where the petitioner conducted business. PW41, PW42 and
PW43 are the Investigating Officers in this case. In the petition filed
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CRL.O.P.No.11392 of 2021
before the Lower Court for recalling the witnesses, except stating
that he had not engaged counsel, no other reason is given. From the
adjudication as well as from the report from the Lower Court, it is
seen that the petitioner had engaged one Mr.M.Kannadasan and
Mr.M.Deenadhayalan Advocates from 04.10.2016 till
Mr.C.Deivasigamani, the present counsel, entered appearance on
24.11.2017.
11. In view of the same, the contention of the petitioner
cannot be accepted and the trial Court had rightly rejected the plea of
the petitioner and dismissed the 311 Cr.P.C., petition.
12. This Court by the order dated 16.07.2021 had
directed the Lower Court not to deliver the judgment till the disposal
of the above Criminal Original Petition. In view of the dismissal of
the Original Petition, the trial Court shall proceed with the trial and
deliver judgment
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CRL.O.P.No.11392 of 2021
13. In view of the above, this Court is not inclined to
entertain this petition. Hence, this petition stands dismissed.
Consequently, connected Miscellaneous Petition is also closed.
26.07.2021
Index : Yes/No
Internet : Yes/No
dna
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CRL.O.P.No.11392 of 2021
To
1.The Special Court under TNPID Act, Coimbatore.
2.The Inspector of Police
Economic Offence Wing
II Unit, Coimbatore.
3.The Public Prosecutor,
High Court, Madras.
https://www.mhc.tn.gov.in/judis/
CRL.O.P.No.11392 of 2021
M.NIRMAL KUMAR, J.
dna
CRL.O.P.No.11392 of 2021
and
Crl.M.P.No.6631 of 2021
26.07.2021
https://www.mhc.tn.gov.in/judis/
