Madras High Court
Dr.A.G.Eye Hospital Private ... vs D.Balan on 24 February, 2022
Crl.O.P.(MD)No.3735 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 24.02.2022
CORAM
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P(MD)No.3735 of 2022
and
Crl.M.P(MD)Nos.2729 & 2731 of 2022
1. Dr.A.G.Eye Hospital Private Limited,
represented by Managing Director,
Dr.Kummararaj.G
2. Dr.Kummararaj ... Petitioners/Accused No.1 &2
Vs.
D.Balan ...Respondent/Complainant
Prayer: Criminal Original Petition is filed under Section 482 Cr.P.C., to call for
the records pertaining to the case in S.T.C No.5338 of 2019 pending of the file
of Judicial Magistrate No.IV, Tiruchirappalli and quash the same as illegal as
for as against the petitioners by allowing this Criminal Original Petition.
For Petitioner : Mr.B.Janath Ahmed @ B.Janarth Kumar
For Respondents : Mr.R.M.Anbunithi
R1 Additional Public Prosecutor
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Crl.O.P.(MD)No.3735 of 2022
ORDER
This petition has been filed to quash the proceedings in S.T.C.No.5338 of
2019 on the file of the learned Judicial Magistrate No.IV, Trichy, thereby taken
cognizance for the offences under Sections 138 & 141 of Negotiable
Instruments Act, as against the petitioners.
2.The case of the respondent/complainant is that the brother of the third
accused borrowed a sum of Rupees Two Lakhs from the respondent in the year
2018, but subsequently the third accused failed to repay the same. On
12.2.2018, the complainant presented the cheque, which was given by the
accused for collection through his banker, same was dishonoured on
13.02.2018, as “Funds insufficient”. Hence, private complaint lodged by the
respondent/complainant against the petitioners.
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. Without any base, a case was registered for the
offences under Sections 138 & 141 of Negotiable Instruments Act, as against
the petitioners and the same has been taken cognizance in S.T.C.No.5338 of
2019 on the file of the learned Judicial Magistrate No.IV, Trichy. Hence they
prayed to quash the same.
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Crl.O.P.(MD)No.3735 of 2022
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 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
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Crl.O.P.(MD)No.3735 of 2022
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 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
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Crl.O.P.(MD)No.3735 of 2022
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:
"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...................."
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Crl.O.P.(MD)No.3735 of 2022
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.
9.In view of the above discussion, this Court is not inclined to quash the
proceedings in S.T.C.No.5338 of 2019 on the file of the learned Judicial
Magistrate No.IV, Trichy. The petitioners are at liberty to raise all the grounds
before the trial Court. Considering the age of the petitioners, the personal
appearance of the petitioners is dispensed with and he shall be represented by a
counsel after filing appropriate application. However, the petitioners 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 a copy of this Order.
10.Accordingly, this criminal original petition is dismissed.
Consequently, connected miscellaneous petitions are also closed.
24.02.2022
Index : Yes / No
Internet : Yes/ No
PNM
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Crl.O.P.(MD)No.3735 of 2022
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 Judicial Magistrate No.IV,
Trichy.
2. The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.O.P.(MD)No.3735 of 2022
G.K.ILANTHIRAIYAN, J.
PNM
ORDER IN
Crl.O.P(MD)No.3735 of 2022
and
Crl.M.P(MD)Nos.2729 & 2731 of 2022
24.02.2022
https://www.mhc.tn.gov.in/judis
