Madras High Court
G.Kumaresan vs The State Represented By Its on 7 February, 2022
Crl.O.P(MD)No.2575 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.02.2022
CORAM :
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P(MD)No.2575 of 2022
and
Crl.M.P(MD)No. 1915 of 2022
G.Kumaresan ...Petitioner/
Sole Accused
Vs.
1.The State represented by its
The Inspector of Police,
Vikkiramangalam Police Station,
Madurai District. ...1st Respondent/
(Crime No.128 of 2018) Complainant
2.Sivabadhasekaran
The Manager,
Canara Bank,
Vikkiramangalam,
Madurai District.
Presently working at
The Manager,
Canara Bank (Syndicate Bank),
Theni Main Road, Kalavasal,
Madurai. ...2nd Respondent/
Defacto Complainant
Prayer: This Criminal Original Petition is filed under Section 482 of
Cr.P.C., to call for the records relating to the impugned Charge Sheet in
C.C.No.80 of 2021 on the file of the learned Judicial Magistrate Court
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Crl.O.P(MD)No.2575 of 2022
No.II, Usilampatti, Madurai District and to quash the same as illegal,
unconstitutional and arbitrary.
For Petitioner : Mr.D.Pammela
For R1 : Mr.B.Thanga Aravindh
Govt. Advocate (Crl.Side)
ORDER
This petition has been filed to quash the proceedings in C.C.No.80
of 2021 on the file of the learned Judicial Magistrate Court No.II,
Usilampatti, Madurai District, thereby taken cognizance for the offences
under Sections 409 of IPC, in Crime No.128 of 2018, as against this
petitioner.
2.The case of the prosecution is that the petitioner was a Cashier
(SWO) at Canara Bank, Vikkiramangalam Branch. On 12.06.2018, the
petitioner took cash from Vault (Safe Room), but by mistake it was
recorded as 69 pieces of Rs.2000/- notes instead of 169 pieces. By
taking advantage of the mistake committed by the Double Lock Key
Holders, the petitioner is said to have taken 100 pieces of Rs.2000/-
notes and misappropriated a sum of Rs.2 Lakhs.
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Crl.O.P(MD)No.2575 of 2022
3.The learned Counsel appearing for the petitioner would submit
that the petitioner is innocent and they have not committed any offence
as alleged by the prosecution. Without any base, the first respondent
police registered a case in Crime No.128 of 2018 for the offences under
Sections 409 of IPC, as against the petitioner and the same has been
taken cognizance in C.C.No.80 of 2021 on the file of the learned Judicial
Magistrate Court No.II, Usilampatti, Madurai District. Hence he prayed
to quash the same.
4.The learned Additional Public Prosecutor would submit that the
trial has been commenced and some of the witnesses have been examined
in this case.
5.Heard both sides and perused the materials available on record.
6.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
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Crl.O.P(MD)No.2575 of 2022
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.
7.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
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Crl.O.P(MD)No.2575 of 2022
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 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.”
8.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:
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Crl.O.P(MD)No.2575 of 2022
"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
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Crl.O.P(MD)No.2575 of 2022
points raised by the petitioners cannot be considered by this Court under
Section 482 Cr.P.C.
` 9.In view of the above discussion, this Court is not inclined to
quash the proceedings in C.C.No.80 of 2021 on the file of the learned
Judicial Magistrate Court No.II, Usilampatti, Madurai District. The
petitioner is at liberty to raise all the grounds before the trial Court. The
trial Court is directed to complete the trial within a period of six months
from the date of receipt of a copy of this Order.
10.Accordingly, this criminal original petition is dismissed.
Consequently, connected miscellaneous petition is also closed.
07.02.2022
Index :Yes/No
Internet : Yes/No
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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.
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Crl.O.P(MD)No.2575 of 2022
To:
1.The Inspector of Police,
Vikkiramangalam Police Station,
Madurai District.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.O.P(MD)No.2575 of 2022
G.K.ILANTHIRAIYAN, J.
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Crl.O.P(MD)No.2575 of 2022
07.02.2022
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