Madras High Court

Usha vs The State Represented By on 5 September, 2022

                                                                               Crl.O.P.No.21140 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED: 05.09.2022

                                                         CORAM:

                                  THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN

                                                 Crl.O.P.No.21140 of 2022
                                                            and
                                            Crl.M.P.Nos.13804 and 13805 of 2022


                Usha                                                      ... Petitioner

                                                            Vs.

                1. The State represented By
                   Inspector of Police,
                   District Crime Branch,
                   Nagapattinam.
                   [Crime No.10 of 2020]

                2. Anantharaj                                             ... Respondents


                Prayer: Criminal Original petition filed under Section 482 of Code of Criminal
                Procedure, to call for the records and quash the entire proceedings in
                C.C.No.588 of 2021 pending on the file of the learned Judicial Magistrate-I,
                Nagapattinam in Cr.No.10 of 2020 on the file of the respondent police.

                                  For Petitioner    : Mr. M.Govindaraju

                                  For R-1           : Mr. E.Raj Thilak
                                                      Additional Public Prosecutor


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                                                                                  Crl.O.P.No.21140 of 2022

                                                            ORDER

This Criminal Original Petition has been filed calling for the records

and quash the entire proceedings in C.C.No.588 of 2021 pending on the file of

the learned Judicial Magistrate-I, Nagapattinam in Cr.No.10 of 2020 on the file

of the respondent police.

2. The case of the prosecution is that the petitioner is arrayed as A3.

It is alleged that a company named “Prompt Multistate Co-operative Private

Ltd”, cheated the de-facto complainant by advertising that it repays double the

amount invested on attaining maturity in 5 years with 14% interest. On

inducement of petitioner and A2, the de-facto complainant deposited

Rs.12,50,000/-. Thereafter, the petitioner and A2 failed to return the said

amount. Hence, the complaint.

3. The learned Counsel for the petitioner submits that the petitioner is

the wife of the second accused who is a home maker and she has nothing to do

with the crime with the other accused. That apart, the main accused persons

involved in this case were left out. He further submits that there is no specific

allegation as against the petitioner, since she is neither an employee nor a

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Crl.O.P.No.21140 of 2022

Director or a partner of the company and hence, she is no way connected with

the alleged transaction and as such, she has been falsely implicated in this case.

4. A perusal of the statement recorded under Section 161 (3) of

Cr.P.C revealed that the petitioner along with two other accused persons

induced the de-facto complainant and other victims to deposit amount and they

assured that they will return double the payment with exorbitant interest.

Therefore, there are materials to attract the offences under Sections 406, 420,

468 and 471 of IPC as against all accused persons. Further, the grounds raised

by the petitioner are mixed question of facts and it cannot be considered in the

quash petition.

5. In this regard, 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

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Crl.O.P.No.21140 of 2022

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.

6. 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

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Crl.O.P.No.21140 of 2022

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.”

7. 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

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Crl.O.P.No.21140 of 2022

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

points raised by the petitioner are mixed question of facts and it cannot be

considered in quash petition under Section 482 Cr.P.C.

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Crl.O.P.No.21140 of 2022

8. In view of the above discussion, this Court is not inclined to quash

the proceedings in C.C.No.588 of 2021 pending on the file of the learned

Judicial Magistrate-I, Nagapattinam. The personal appearance of the petitioner

is dispensed with and she shall be represented by a counsel after filing

appropriate application. However, the petitioner 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