Madras High Court
Musthafa vs State Rep. By on 31 October, 2023
Crl.O.P.(MD)No.15786 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 31/10/2023
CORAM
The Hon'ble Mr.Justice G.ILANGOVAN
Crl.OP(MD)Nos.15786 of 2023
and
Crl.MP(MD)Nos.12561 and 12562 of 2023
Musthafa : Petitioner/Sole Accused
Vs.
1.State rep. by
The Inspector of Police,
District Crime Branch,
Thanjavur District.
(In Crime No.21 of 2022) : R1/Complainant
2.Sayifullah : R2/De-facto Complainant
PRAYER:- Criminal Original Petition has been filed
under section 482 of the Criminal Procedure Code, to call
for the records pertaining to the case in Impugned Charge
Sheet in CC No.96 of 2022 on the file of the Judicial
Magistrate Court No.III, Thajavur and to quash the same
as illegal and to pass such further orders.
For Petitioner : Mr.KPS.Palanivel Rajan
Senior counsel
for Mr.V.Malaiyendran
For 1st Respondent : Mr.M.Vaikkam Karunanithi
Government Advocate
(Criminal side)
For 2nd Respondent : Mr.R.L.Dhilipan Pandian
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Crl.O.P.(MD)No.15786 of 2023
O R D E R
This criminal original petition has been filed
seeking quashment of the case in CC No.96 of 2022 on the
file of the Judicial Magistrate No.III, Thanjavur.
2.This case is a long history. Before we go into the
maintainability of the petition at the fag end of the
trial process, the background facts and the conduct of
the petitioner is also worth to be noted.
3.The petitioner is facing the charges for the
offences under sections 406, 420 and 421 IPC, in CC No.96
of 2022 on the file of the Judicial Magistrate No.III,
Thanjavur.
4.The long and short of the prosecution case is that
this petitioner instigated the 2nd respondent, who is the
de-facto complainant to invest money in his business so
that he can earn huge profit. One Crore was paid in the
presence of A2 and A3. Towards the above said
transaction, 4 cheques were issued for Rs.25,00,000/-
each. An agreement mortgage was also entered. Later this
petitioner filed IP No.2 of 2021 to declare him as
Insolvent. The cheques issued were dishonoured.
Suppressing the mortgage, this petitioner alleged to have
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Crl.O.P.(MD)No.15786 of 2023
executed a settlement deed regarding the property pledged
or mortgaged in favour of his own brother namely Mohammed
Abdullah. Stating that he has been cheated, the above
said complaint was filed. Based upon which, a case in
Crime No.21 of 2022 was registered for the offences
stated above. After completing the process of
investigation, final report was filed before the
concerned court namely the Judicial Magistrate No.III,
Thanjavur and it was taken cognizance in CC No.96 of
2022. Now the trial started and about to be completed. He
was arrested during the course of investigation and
remanded to custody.
5.At one point of time, this petitioner moved
interim bail before me, promising and undertaking to
settle the issue, if released on bail. Considering the
genuine attempt made by the petitioner to settle the
issue, interim bail was granted by me. In the meantime,
Crl.MP Nos.1722 and 1723 of 2023 was filed before the
trial court. But however, he did not keep his promise and
failed to settle the issue.
6,Again the matter came up for passing final orders.
At that time, the learned counsel appearing for the
petitioner went to the extent of arguing before this
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Crl.O.P.(MD)No.15786 of 2023
court stating that this court has no jurisdiction to pass
interim bail orders. When that argument was rejected by
me, but however, considering the fact that the trial
process is in the midway, there is no purpose for
cancelling the bail, but stringent condition was imposed
upon the petitioner to appear before the trial court in
the alternative daystill the conclusion of the trial
process. Further, it was directed to complete the trial
process within a period of three months, by order, dated
24/06/2023. Now the trial goes on. The petitioner filed
several applications seeking to recall certain witnesses.
But it came to be dismissed by the trial court. Against
which, he has also filed Crl.OP(MD)Nos.14939 and 15298 of
2023 before this court. Simultaneously, he has also filed
Crl.OP(MD)No.15786 of 2023 seeking quashment of the
entire proceedings. This is the background and history of
the case indicating the conduct of the petitioner.
7.Now the learned Senior counsel appearing for the
petitioner would argue only on that aspect. According to
him, even though, the trial process is in the fag end, it
is very well maintainable. Even as per the case of the
prosecution, money was paid in cash. According to him, it
is not legal. He is also referring to the provisions of
Prevention of Money Laundering Act and Income Tax Act,
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Crl.O.P.(MD)No.15786 of 2023
etc. According to him, absolutely, no evidence or record
is placed before this court to prove the payment;
Absolutely, there is no document. Even we take that the
amount was paid, it is prohibited under the provisions of
the Prevention of Money Laundering Act, 2002. Apart from
that, he would submit that it is out and out business
issue between the parties. For attracting the offence
under section 420 IPC, the ingredients are totally
lacking. He would also rely upon the following
judgments:-
1.Vesa Holdings Private Limited
and another Vs. State of Kerala and
others [(2015)3 SCC 203];
2.Satish Mehra Vs. State of N.C.T
of Delhi and others [(2012)11 SC 0010]
3.Satish Mehara Vs. State of N.C.T
of Delhi and another (2012 0
Supreme(SC) 822).
8.Per contra, the learned counsel appearing for the
2nd respondent, by relying upon the decision reported in
the case of Central Bureau of Investigation Vs. Aryan
Singh Etc. (2023 LiveLaw (SC)292) would submit that at
the stage of exercising power under section 482 Cr.P.C,
no mini-trial is permitted. Whether the criminal
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Crl.O.P.(MD)No.15786 of 2023
proceedings are malicious in nature cannot be taken into
account. The requirement is the materials collected
during the course of investigation.
9.Here the trial is in the midway and about to be
completed. The copies of the depositions have also been
produced by the 2nd respondent, which shows that PW10 is
the Investigating Officers; she also examined and cross
examined by this petitioner; PW1, PW2 and PW3 were
examined in chief and cross. Elaborate cross examination
has also been made with regard to the transaction.
10.It is the specific case of the petitioner that
before 29/07/2022, PW1 and others broke open the office
and took away the documents and filled up the same,
forged the signature and filed the case. When such being
the defence taken by the petitioner before the trial
court, the ground that has been raised by him in this
petition cannot be considered at all. He has to take up
three defences that are available to him before the trial
court only. Adopting diluting tactics and delaying
tactics and misdirecting the trial process will amount
to clear abuse of the process of court. Abuse of process
of court is apparent on the face of record, in the light
of the above said conduct of the petitioner during the
trial process. So this petition deserves no
consideration.
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Crl.O.P.(MD)No.15786 of 2023
11.Even though this court is of the opinion that
cost must be imposed upon the petitioner, but however,
it desist from imposing costs, hoping that the petitioner
will cooperate for the completion of the trial process as
directed by this court.
12.In the result, this criminal original petition is
dismissed. Consequently, connected Miscellaneous
Petitions are closed.
31/10/2023
Index:Yes/No
Internet:Yes/No
er
To,
1.The Judicial Magistrate No.III,
Thanjavur.
2.The Inspector of Police,
District Crime Branch,
Thanjavur District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.15786 of 2023
G.ILANGOVAN, J
er
Crl.OP(MD)Nos.15786 of 2023
31/10/2023
https://www.mhc.tn.gov.in/judis
