Madras High Court
A.C.Chandrasekaran vs Sri Raja Rajeswari Tex on 10 April, 2023
Crl.O.P.No.30315 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.04.2023
CORAM
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
Crl.O.P. No.30315 of 2019
and
Crl.M.P. Nos. 16384 & 16385 of 2019
A.C.Chandrasekaran ... Petitioner
Vs.
1.Sri Raja Rajeswari Tex,
ACS Illam,
320, Chinnasamy Nagar,
Seelanaichenpatti,
Salem – 636201.
2.P.Vasudevan ... Respondents
PRAYER: Criminal Original Petition filed under Section 482 of the
Criminal Procedure Code, to call for the records with respect of the
complaint filed by the respondent herein in C.C.No.559 of 2019 on the
file of the Judicial Magistrate IV, Salem, and quash the same as far as
the petitioner is concerned.
1/9
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.30315 of 2019
For Petitioner : Mr. R.Nalliyappan
For Respondents : Mr. John Sathyan
Senior Advocate
for Mr. N.Anand.
ORDER
The petition is to quash the private complaint in C.C.No. 559 of
2019 for the alleged offences under Section 294 (b), 323, 324, 120(b),
406, 420, 506(ii), 447, 448 and 379 IPC.
2. It is alleged in the complaint that A1 was working as a
Manager in the company belonging to the defacto complainant and has
misappropriated money and transferred it to the company run by his
wife, namely, A2. It is further alleged that A1 had misappropriated the
said money at instance of A3.
3. The learned counsel for the petitioner would submit that the
allegations even if accepted to be true do not constitute any offences
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Crl.O.P.No.30315 of 2019
against the petitioner. The petitioner is sought to roped in
unnecessarily only to armtwist the 1st accused. The petitioner has
nothing to do with the affairs of the company run by his daughter or his
son in law, i.e., A1 and A2, respectively. The learned counsel would
further submit that the learned Judicial Magistrate IV, Salem, had not
applied his mind while taking cognizance and had passed very cryptic
order. There is no indication in the said cognizance order as to whether
there is sufficient ground for proceeding with the case.
4. Mr. John Sathyan, learned Senior Court appearing for the
respondents would submit that there are allegations in the impugned
complaint and hence it is for the petitioner to raise all his defence
before the Trial Court and prayed for the dismissal of the quash
petition.
5. This Court finds that the only allegation against the petitioner
is that the 1st accused had misappropriated money in connivance with
the petitioner. Apart from that, there is no material in the impugned
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Crl.O.P.No.30315 of 2019
complaint to connect the petitioner with the alleged crime. The
petitioner cannot be prosecuted on the basis of such vague allegations.
Even with regard to allegations of threat and using abusive language
there are no specific details to implicate the petitioner. Further, this
Court finds that the order of cognizance is liable to be set aside as the
order does not reflect application of the mind of the learned Judicial
Magistrate IV, Salem. This Court and the Hon'ble Supreme Court have
time and again stated that the order taking cognizance is not an empty
formality. The Hon'ble Supreme Court in 2022 LiveLaw (SC) 833 –
Lalankumar Singh and others Vs. State of Maharashtra, had held as
follows:
“28. The order of issuance of process is not an
empty formality. The Magistrate is required to apply his
mind as to whether sufficient ground for proceeding exists
in the case or not. The formation of such an opinion is
required to be stated in the order itself. The order is liable
to be set aside if no reasons are given therein while
coming to the conclusion that there is a prima facie case
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Crl.O.P.No.30315 of 2019
against the accused. No doubt, that the order need not
contain detailed reasons. A reference in this respect could
be made to the judgment of this Court in the case of Sunil
Bharti Mittal vs. Central Bureau of Investigation9 , which
reads thus:
“51. On the other hand, Section 204 of the Code
deals with the issue of process, if in the opinion of the
Magistrate taking cognizance of an offence, there is
sufficient ground for proceeding. This section relates to
commencement of a criminal proceeding. If the Magistrate
taking cognizance of a case (it may be the Magistrate
receiving the complaint or to whom it has been transferred
under Section 192), upon a consideration of the materials
before him (i.e. the complaint, examination of the
complainant and his witnesses, if present, or report of
inquiry, if any), thinks that there is a prima facie case for
proceeding in respect of an offence, he shall issue process
against the accused.
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Crl.O.P.No.30315 of 2019
52. A wide discretion has been given as to grant or
refusal of process and it must be judicially exercised. A
person ought not to be dragged into court merely because
a complaint has been filed. If a prima facie case has been
made out, the Magistrate ought to issue process and it
cannot be refused merely because he thinks that it is
unlikely to result in a conviction.
53. However, the words “sufficient ground for
proceeding” appearing in Section 204 are of immense
importance. It is these words which amply suggest that an
opinion is to be formed only after due application of mind
that there is sufficient basis for proceeding against the
said accused and formation of such an opinion is to be
stated in the order itself. The order is liable to be set aside
if no reason is given therein while coming to the
conclusion that there is prima facie case against the
accused, though the order need not contain detailed
reasons. A fortiori, the order would be bad in law if the
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Crl.O.P.No.30315 of 2019
reason given turns out to be ex facie incorrect.”
6. It is also found that earlier the Inspector of Police, DCB,
Salem was directed to investigate the matter and file a report.
Accordingly, the Crime Branch found that the allegations are civil in
nature and filed a report to that effect. However, the learned Judicial
Magistrate IV, Salem, had rejected the said report and taken the
impugned complaint on file.
7. Since the order taking cognizance is erroneous, the same is set
aside and the matter is remanded to the learned Judicial Magistrate IV,
Salem, for fresh consideration. However, as stated earlier as against
the petitioner there are absolutely no allegations attracting the alleged
offences. Therefore, for the above reasons, this Court finds that the
impugned complaint against the petitioner is liable to be quashed.
Since the order being cognizance has been set aside, the learned
Judicial Magistrate IV, Salem may consider the case afresh and take
cognizance of the offences against the other accused by following the
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Crl.O.P.No.30315 of 2019
dictum of the Hon'ble Supreme Court in Lalankumar Singh and
others Vs. State of Maharashtra supra.
8. The petition is allowed with the above observation.
Consequently, the connected Miscellaneous Petitions are closed. No
costs.
10.04.2023
Index : Yes/No
Internet : Yes/No
Neutral Citation :Yes/No
kan
To
The Judicial Magistrate IV,
Salem.
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.30315 of 2019
SUNDER MOHAN. J,
kan
Crl.O.P.No. 30315 of 2019
10.04.2023
https://www.mhc.tn.gov.in/judis
