Madras High Court
K.Vasudevan vs M/S.Genix Automation Pvt. Ltd on 28 January, 2022
Crl.R.C.No.359 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.01.2022
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.R.C.No.359 of 2015
K.Vasudevan ... Petitioner
Versus
1.M/s.Genix Automation Pvt. Ltd.,
Rep. by its Managing Director
Byeong In Yoo
2.Byeong In Yoo
3.Uday Vasatrao Nikam
4.Jong Jun Kim
5.Hiren Harshadrai Desai
6.G.Vivek ... Respondents
Prayer: Criminal Revision Petition filed under Section 397 r/w 401 of Criminal
Procedure Code, to set aside the judgment, dated 07.03.2015 passed by the
learned XIV Metropolitan Magistrate, Egmore, Chennai in M.P.No.191 of 2015
and consequentially, direct the learned XIV Metropolitan Magistrate, Egmore,
Chennai to take the private complaint on file and proceed in accordance with
law.
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For Petitioner : Mr.R.Palaniandavan
For Respondent : No Appearance
ORDER
This Criminal Revision is filed by the petitioner/complainant, aggrieved
by the order of the learned XIV Metropolitan Magistrate, Egmore, dated
07.03.2015 in M.P.No.191 of 2015, whereby, after recording the sworn
statement of the complainant, in a complaint filed under section 200 of Code of
Criminal Procedure alleging offences under Sections 417, 418, 420 read with
120B read with 34 of Indian Penal Code, the learned Magistrate found that
there was no prima facie case against the A1 to A6, upon examining the
allegations in the complaint and the sworn statement on the ground that the
transaction is purely civil in nature and is a business transaction and no prime
facie ingredients for the offences under Sections 417, 418 and 420 of Indian
Penal Code is made out as against the accused persons. This apart, the learned
Magistrate also had found that the place of delivery of goods is at
Kancheepuram and therefore, it does not come within the territorial jurisdiction
of that Court and thus, dismissed the complaint under Section 203 of Code of
Criminal Procedure. Aggrieved by the same, the present Revision is laid before
this court.
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Crl.R.C.No.359 of 2015
2. In the present Revision, notice was ordered to the first respondent
company and the other individuals, being the Managing Director and Directors
and persons in charge of the company, respondents 2 to 6. Repeated Court
notices and the private notice, sent by the petitioner, have returned with an
endorsement that as far as the address of the first accused company in
Sriperumbudur taluk is concerned, the same seems to be closed permanently.
The other address being 111/112, Vinayak Arcade, Opposite to Bajaj Auto Ltd.,
Akrudi, Pune – 411035 is said to be the registered office of the company.
Notices sent to the said registered office of the company have also returned
unserved on the ground that the accused are not found in the said address. The
complainant can only be expected to take notice to the registered address of the
company and to the place of business of the company, and both being returned,
the learned counsel would submit that the same has to be taken as been wilful
evasion of service and therefore, taking into account the said endorsements in
the postal covers, read with Section 403 of Code of Criminal Procedure and
coupled with the fact that the subject matter relates to pre-cognizance stage,
service is treated as complete and this court proceeded to hear the matter on
merits as the Criminal Revision is pending from the year 2015, for want of
service.
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Crl.R.C.No.359 of 2015
3. Heard a Mr.R.Palaniandavan, the learned Counsel for the petitioner.
4. The learned Counsel took this Court through the averments in the
complaint and it is submitted that it can be seen that after placing a purchase
order and accepting goods for a total price of Rs.21,31,812/-, in repayment
thereof, the accused had issued 3 cheques amounting to Rs.7,00,000/- lakhs and
all the 3 cheques returned dishonoured for the reasons “funds insufficient“.
Even when the statutory notice under the Negotiable Instruments Act was
sought to be served, the same had returned with the endorsement as “always
door locked“. Under these circumstances, considering the manner in which the
first accused company and the accused Nos.2 to 6, being the Managing
Director, Directors and the persons incharge of the affairs of the company, have
operated like fly-by-night operators, having closed shop and disappeared, the
complainant, instead of filing complaint under Section 138 of the Negotiable
Instruments Act, chose to file the present complaint, complaining the offences
under Section 417, 418, 420 read with 120B and 34 of Indian Penal Code.
5. The learned Counsel would further submit that the legal position has
been clearly laid down by the Hon'ble Supreme Court of India in Dashrath
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Crl.R.C.No.359 of 2015
Rupsingh Rathod Vs. State of Maharashtra 1, whereby, the Hon'ble Supreme
Court has clearly held that inspite of Section 138 of the Negotiable Instruments
Act, the option of prosecuting under Section 420 of Indian Penal code is still
available if the payee finds it advantageous or convenient to proceed under that
provision. The learned Counsel further add that in this case, no complaint
under Section 138 of the Negotiable Instruments Act was also filed and the
complainant has taken a conscious decision to proceed only under Section 417,
418, 420 of the Indian Penal Court and therefore, once the cheque is given with
the promise to make good the payment and thereafter not making provisions in
their account for the cheque amount and closing the unit and vanishing, would
clearly establish the ingredients under Section 417, 418 and 420 of Indian Penal
Code and therefore, the learned Magistrate errored in holding that the entire
transaction is civil in nature.
6. I have considered the submissions made by the learned Counsel for the
petitioner. I have perused the averments made in the complaint as well as the
sworn statement recorded. The complainant as well as the sworn statement
clearly brings forth the factum of supply of goods, non-payment thereafter,
issuance of cheque, dishonour of the cheques for the reasons “funds
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Crl.R.C.No.359 of 2015
insufficient”, and closure of the factory at Sriperumbudur without informing the
creditor. Therefore, I am in agreement with the submissions made by the
learned Counsel for the petitioner that the complaint prima facie discloses the
offences under Section 417, 418 and 420 read with 120B and 34 of Indian
Penal Code.
7. As rightly pointed out by the learned Counsel for the petitioner, even if
the cheque has bounced, if the nature of the transactions point out towards an
intention to cheat, it will be open for the complainant to proceed under the
Indian Penal Code for the offences under Sections 417, 418 and 420 of Indian
Penal Code and in this case, the complainant has chosen the said option and no
complaint, under Section 138 of the Negotiable Instruments Act, has been filed.
Therefore, the order of the learned XIV Metropolitan Magistrate, in this regard,
is unsustainable.
8. As far as the territorial jurisdiction is concerned, it is the submission of
the leaned Counsel that firstly, the transaction also emanated from the offices of
the complainant at Egmore within the jurisdiction of the learned Metropolitan
Magistrate. This apart, the consequence of the cheating and the loss was to the
complainant whose address is at Egmore and therefore, by virtue of Section 179
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Crl.R.C.No.359 of 2015
of Code of Criminal Procedure, the learned Magistrate had territorial
jurisdiction to entertain the same. Therefore, since a part of the transaction is
also from the office of the complainant and the effect of the cheating is also felt
in the office of the complainant company, there is territorial jurisdiction for the
learned Magistrate to entertain the complaint. This apart, once the learned
Magistrate decides to entertain the complaint on merits and proceeded to give
finding on merits, the alternative finding on the territorial jurisdiction is also
unsustainable.
9. For all the above reasons, the order impugned in this Criminal
Revision, passed by the learned XIV Metropolitan Magistrate, Egmore,
Chennai, dated 07.03.2015 in M.P.No.195 of 2015 is set aside. The learned
Magistrate is directed to take the case on file, issue summons to the accused and
proceed with the case in accordance with the law. Considering the efflux of
time, the learned Magistrate is requested to deal with this complaint as
expeditiously as possible.
10. The Criminal Revision Case is allowed as aforesaid.
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Crl.R.C.No.359 of 2015
Index : yes
Internet : yes
Speaking order
grs
To
The XIV Metropolitan Magistrate,
Egmore, Chennai.
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Crl.R.C.No.359 of 2015
D.BHARATHA CHAKRAVARTHY. J.,
grs
Crl.R.C.No.359 of 2015
28.01.2022
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