Madras High Court
Sathyamoorthy vs The State Represented By The on 29 September, 2023
Crl. R.C.(MD)No.157 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 29.09.2023
CORAM
THE HONOURABLE MR. JUSTICE P. DHANABAL
Crl. R.C.(MD)No.157 of 2019
and
Crl.M.P.(MD)Nos.2442 and 2443 of 2019
1.Sathyamoorthy
2.Ramachandran .. Petitioners
Vs.
1.The State Represented by the
Inspector of Police,
District Crime Branch,
Thoothukudi.
(In Crime No.46 of 2016).
2.Thirumani .. Respondents
Prayer : This criminal revision case is filed under Sections 397 and 401 of Cr.P.C.,
to call for the records pertaining to the impugned order passed by the learned Judicial
Magistrate No.III, Thoothukudi, in Crl.M.P.No.2174 of 2018 in C.C.No.223 of 2018
dated 10.09.2018 and subsequent cognizance taken in C.C.No.224 of 2018 by the
learned Judicial Magistrate Court No.III, Thoothkudi and set aside the same as
illegal.
For Petitioners : Mr.A.Rahul
For 1st Respondent : Mr.M.Sakthi Kumar
Government Advocate (Crl. Side)
For 2nd Respondent : No Appearance
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Crl. R.C.(MD)No.157 of 2019
ORDER
This petition has been filed by the petitioner to set aside the impugned
order passed by the learned Judicial Magistrate No.III, Thoothukudi, in Crl.M.P.No.
2174 of 2018 in C.C.No.223 of 2018 dated 10.09.2018.
2.According to the petitioners, the case was initially registered against 11
persons including against the petitioners, one Alaguvel and others in Crime No.46 of
2016 for the alleged offence under Section 406, 420 and 506(i) of IPC. After
elaborate investigation, the police have deleted the name of petitioners from the
charge sheet holding that money transaction was taken place between the second
respondent and one Alaguvel. Thereafter, the second respondent filed protest petition
before the Magistrate Court and the said petition was allowed and the learned
Magistrate ordered to take cognizance and C.C.No.224 of 2018 was assigned. Once
the Police have filed negative final report as against the petitioners, there should be
some materials to take cognizance by the learned Magistrate but without any
documents and materials, the learned Magistrate has taken cognizance for the
offence under Sections 406, 420 and 506(i) of IPC against these petitioners. In fact
Sri Hari Refinery Private Limited Company decided to sale the machineries of the
company except the land since the said company was under financial crisis. These
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Crl. R.C.(MD)No.157 of 2019
petitioners are Directors of the said company. The second petitioner who is the
managing Director of the company entered into unregistered agreement of sale dated
18.09.2014 for a sum of Rs.47,50,000/- with one Alagavel who is the owner of the
ACP Enterprises for the purpose of selling the machines. The said Alaguvel is
engaged in selling of old iron materials business. Based on the aforesaid agreement,
on the same day, the second petitioner has received a sum of Rs.50,000/- from
Alaguvel as advance. Thereafter, on the terms of said agreement, the said Alaguvel
was allowed by the petitioners to remove the machineries in their factory and to take
away.
3.In the meantime, one Thirumani who is also an iron scrap merchant
obtained an order from the learned Judicial Magistrate No.I, Thoothkudi seeking a
direction to direct the first respondent to register a case against the said Alaguvel and
the petitioners and FIR was registered on 09.09.2016 in Crime No.46 of 2016 for the
offence under Sections 406, 420 and 506(i) of IPC alleging that said A3 by showing
the agreement dated 18.09.2014 to remove the scrap iron from the factory premises
of the petitioners, invited the Thirumeni to become partner in the said transactions
and received a sum of Rs.37,50,000/- from him on various dates. Neither Thirumeni
was allowed to remove the iron scrap nor money taken by Alavel was returned to
him. In fact the petitioners only aware of the business transaction between the said
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Crl. R.C.(MD)No.157 of 2019
Alaguvel of ACP enterprises and the petitioners. Thereafter, the police have enquired
the case and deleted the name of the petitioners. Against which, the said Thirumani
filed a protest petition. In that protest petition, the learned Magistrate has passed an
order as against these petitioners and taken cognizance in C.C.No.223 of 2018
without any materials.
4.No counter has been filed on the side of the respondents.
5.The learned counsel appearing for the petitioners would contend that
these petitioners have been arrayed as accused in Crime No.46 of 2016 for the
offence under Sections 406, 420 and 506(i) of IPC. The second respondent has
lodged a complaint alleging that Alagavel, one of the accused in this case obtained a
sum of Rs.37,57,000/- from the defacto complainant by which the agreement entered
between the petitioners and one Alaguvel. These petitioners have no nexus with the
said Thirumani and the agreement was entered between the petitioners and one
Alaguvel to remove the iron scrap available in the petitioners company. Based on the
agreement, Alaguvel also removed the machineries and taken away the properties. In
the meanwhile, the Thirumani filed this false complaint by including the petitioners'
name. Thereafter, the investigation was conducted by the police station and filed
final report by deleting the name of the petitioners. Thereafter, the defacto
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Crl. R.C.(MD)No.157 of 2019
complainant filed protest petition and the same was allowed without any materials.
Once the police have filed negative report, the learned Magistrate without any
materials cannot take cognizance. But in this case, without any material, the learned
Magistrate has taken cognizance and the same is not in accordance with law and
therefore the aforesaid cognizance taken by learned Magistrate in C.C.No.224 of
2018 and the order passed by the learned Magistrate in Cr.M.P.No.2174 of 2018 is
liable to be set aside.
6.No representation on the side of the second respondent.
7.The learned counsel appearing for the first respondent would contend
that based on the complaint given by the second respondent, they registered Crime
No.46 of 2016 for the offences under Sections 406, 420 and 506(i) of IPC as against
these petitioners and others. Totally 11 accused were arrayed as accused in this case.
Thereafter, elaborate investigation was conducted. As per investigation, the
petitioners have not involved in the occurrence and the petitioners are no way
connected with the occurrence. Thereby, their names were deleted in the charge
sheet. Thereafter, the second respondent has filed protest petition and the protest
petition was allowed and the learned Magistrate has taken cognizance as against
these petitioners. The petitioners have to face trial and thereby, the petition is liable
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Crl. R.C.(MD)No.157 of 2019
to be dismissed.
8.This Court heard both sides and perused the materials available on
records.
9.The contention of the petitioners is that already the police have
investigated the case and the name of the petitioners were deleted since no materials
available as against them. Thereafter, the aforesaid final report was filed before the
learned Judicial Magistrate. Thereafter, the second respondent filed protest petition
and the same was allowed by the learned Magistrate. At the time of passing order,
the learned Magistrate has not perused any records and no records were produced by
the protest petitioner. The protest petition has been filed without any records and
based on the petition, only the learned Magistrate has taken cognizance.
10.In this context, the learned counsel appearing for the petitioners relied
upon the judgment of this Court in the case of S.Mohan v. Antony Gomes and
others in Crl.O.P.Nos.24018, 24019, 24990 and 24991 of 2017, wherein this Court
in para nos.15 and 16 reads as follows:-
“15. From the above judgments, it is clear that whenever
Magistrate takes cognizance based on Police Report, despite it is
negative report, he is not bound to follow the procedure laid down
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Crl. R.C.(MD)No.157 of 2019
under Sections 200 and 202 Cr.P.C. Similar view is also taken by the
Hon'ble Apex Court reported in (2019) 8 SCC 27 as stated supra.
16. Taking note of the above judgments, this court is of the
view that while the Magistrate decides to reject the Police Report and
apply his mind on the basis of the materials collected by the
Investigation Agency, in that case, he is not bound to follow the
procedures contemplated under Section 200 and 202 of Cr.P.C,
whereas, treating the protest petition as complaint and for taking such
cognizance, there must be materials by way of evidence produced by the
witnesses, whereas, in this case, merely on the basis of the submissions
and protest petitions, the learned Magistrate took cognizance and it is
not in accordance with law.”
11.The learned counsel appearing for the petitioners relied upon the
judgment of this Court in the case of Chellam v. State and others in Crl.R.C.No.280
of 2017, wherein this Court in para nos.15 and 16 reads as follows:-
“6. The code of the Criminal Procedure does not speak about
protest petition. It is an opportunity granted to the victim or informant or
the defacto complainant to raise objections against the negative final
report filed by the police. When the victim or defacto complainant is not
satisfied with the conclusions arrived at by the police in the final report,
such person can approach the jurisdictional court and move the petition
against the negative final report. To put it in short, the objections filed
by the victim or informant or defacto complainant to the negative final
report of the police is called as protest petition and it is only a
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Crl. R.C.(MD)No.157 of 2019
representation made by the victim or complainant. In the case of the
filing of the protest petition, the Magistrate will have four options that the
Magistrate may agree with the decision of the police and accept the final
report and drop the proceedings or that he may take cognizance under
Sections 190(1)(b) Cr.P.C., if he is satisfied with the materials produced
by the police that there is a sufficient ground to proceed, despite the fact
that the police has only filed the negative report or that the Magistrate
may order further investigation in case if he is satisfied that the
investigation already conducted is not proper or that the Magistrate may
proceed to act under Section 200 Cr.P.C., by treating the protest petition
as a complaint. In the case on hand, as already pointed out, the learned
Magistrate has adopted the 4th option or course by treating the protest
petition filed by the defacto complainant under Section 200 Cr.P.C., and
directed for enquiry under Section 202 Cr.P.C., But according to the
revision petitioner, the learned Magistrate ought to have set aside the
negative final report and then ought to have taken the case on file. It is
pertinent to mention that the revision petitioner has not at all filed the
protest petition in the form of complaint under Section 200 Cr.P.C.,
Admittedly, the revision petitioner has not listed out the documents and
the witnesses to be examined. It is not the specific the case of the revision
petitioner that she had filed the protest petition, which also satisfies the
conditions of a complaint. As rightly contended by learned counsel for the
respondents 1 and 2, except the negative report filed by the police and the
protest petition filed by the revision petitioner, there was no other
material available before the Magistrate and as such the question of
taking the case on file does not arise at all.”
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Crl. R.C.(MD)No.157 of 2019
12.On careful reading of the aforesaid judgments, it is clear that when the
learned Magistrate treating the protest petition as complaint and for taking such
cognizance there must be materials by way of evidence and witness and merely on
the basis of the submissions in the protest petition, the learned Magistrate cannot
take cognizance. In the case on hand also, the learned Magistrate has take
cognizance without any material and the second respondent also failed to produce
any documents and thereby, the order passed by the learned Magistrate is not in
accordance with law and hence, it is liable to be set aside.
13.In the result, the Criminal Revision Petition is allowed and the
impugned order passed by the learned Judicial Magistrate No.III, Thoothukudi, in
Crl.M.P.No.2174 of 2018 and pending C.C.No.223 of 2018 dated 10.09.2018 are
quashed. Consequently, connected miscellaneous petitions are closed.
29.09.2023
NCC : Yes/No
Index : Yes/No
Internet : Yes/No
Mrn
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Crl. R.C.(MD)No.157 of 2019
P.DHANABAL, J.
Mrn
To
1.The Judicial Magistrate No.III,
Thoothukudi District.
2.The Inspector of Police,
District Crime Branch,
Thoothukudi.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
Crl. R.C.(MD)No.157 of 2019
29.09.2023
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