Madras High Court
Kannan @ Sivachandren vs The State on 5 March, 2024
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
Crl.O.P.No.5048 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.03.2024
CORAM
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
Crl.O.P.No.5048 of 2023
and
Crl.M.P.Nos.3178 and 3179 of 2023
1. Kannan @ Sivachandren
S/o.Murugan
2. Kumar @ Ramkumar
S/o.Mnai
3. Ajay @ Harikrishnan
S/o.Vasudevan ... Petitioners
Vs.
1. The State,
Represented by its
The Inspector of Police,
Economic Offence Wing,
Salem District.
(Ref. Crime No.8 of 2015)
2. G.Kesavaperumal
S/o.Govindasamy ... Respondents
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Crl.O.P.No.5048 of 2023
PRAYER : Criminal Original Petition filed under Section 482 of the Code
of Criminal Procedure, 1973 praying to quash the additional final report
dated 02.06.2016 in C.C.No.8 of 2015 on the file of the Court of the Special
Judge, Special Court under TNPID Act, Coimbatore for offences under
Sections 120(B), 468, 471, 419 and 420 of IPC and under Section 5 of
TNPID Act r/w 120(B) of IPC.
For Petitioners : Mr.S.Sheik Ismail
For Respondents : Mr.A.Gopinath
Govt. Advocate (Crl.Side) for R1
ORDER
The present petition has been filed seeking to quash the additional
final report / supplementary report dated 02.06.2016 filed in C.C.No.8 of
2015 before the Court below on the ground that the Court below has
proceeded further with the case even without taking cognizance of the
supplementary report.
2. When the matter came up for hearing on 07.03.2023, this Court
passed the following order:
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"Heard the learned counsel for the petitioner.
2. It is the submission of the learned counsel for
the petitioner that originally final report was filed against
three accused Viz., A1/Promox Emu Farms (p) Ltd.,
A2/V.Muthukumar and A3/Kannan. Then prosecution filed
a petition under Section 173 (8) of Cr.P.C. for further
investigation. After further investigation, additional final
report was filed against four more accused. The learned
Special Judge for TNPID Act, 1997 cases, Coimbatore,
without taking cognizance of the offence against the
additional accused Viz., A4/Kailasam, A5/Suresh Gandhi,
A6/Kumar @ Ramkumar and A7/Ajay @ Harikrishnan,
proceeded to furnish copies to the accused, framed charges
and examined the witnesses. Now, this quash petition is
filed challenging the proceedings conducted, without
taking cognizance of the offence against the petitioner.
3. Learned Government Advocate (Crl.side)
submitted that report may be called for from the concerned
Judge as to whether cognizance of the offence against the
additional accused had been taken or not.
4. Therefore, call for report from the learned
Special Judge for TNPID Act, 1997 cases, Coimbatore as to
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whether the cognizance of the offence against the
additional accused Viz., A4/Kailasam, A5/Suresh Gandhi,
A6/Kumar @ Ramkumar and A7/Ajay @ Harikrishnan was
taken, if so, when the cognizance was taken, by return of
post along with a copy of the order taking cognizance. 5.
5. Post the matter after two weeks."
3. Pursuant to the above order, a report has been received from the
learned Special Judge, Special Court under TNPID Act, Coimbatore dated
21.03.2023 and for proper appreciation, the report is extracted hereunder:
“I humbly submit that the Final Report, which
was filed on 07.03.2015 against A1 to A3, was taken on
file on 13.03.2015 and the Additional Final Report was
filed on 02.06.2016, through which, A4 to A7 were
added as accused, but the aforesaid final report,
additional final report and notes paper are silent in
respect of cognizance taken on additional final report
and A4 to A7.
I further submit that even though there was no
endorsement to that effect,“Cognizance is taken of an
offence and not of an offenders/A4 to A7” as held by
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our Hon'ble Apex Court in Sonu Gupta Vs. Deepak
Gupta & Others on 11 February, 2015 and State of
W.B Vs. Mohammed Khalid on 24 November, 1994
that Section 190 of the Code talks of cognizance of
offences by Magistrates. This expression has not been
defined in the Code. In its broad and literal sense, it
means taking notice of an offence. This would include
the intention of initiating judicial proceedings against
the offender in respect of that offence or taking steps to
see whether there is any basis for initiating judicial
proceedings or for other purposes. The word
'cognizance' indicates the point when a Magistrate or a
Judge first takes judicial notice of the offence. It is
entirely a different thing from initiation of proceedings;
rather it is the condition precedent to the initiation of
proceedings by the Magistrate or the Judge.
Cognizance is taken of cases and not of persons. No
particular form is necessary.
The summoning of the additional accused is
part of the proceeding initiated by the Magistrate
taking cognizance of an offence. As pointed out by the
Hon'ble Supreme Court in Raghubans Dubey Vs. State
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of Bihar (1967 AIR SC 1167) and Pravin Chandra
Mody Vs. State of Andhra Pradesh ([1965] 1 S.C.R.
269).
I submit that accordingly, summons were
issued; A4 to A7 appeared; on 14.12.2016, charges
were framed against the accused A1 to A7; they denied
the charges; the prosecution evidence was commenced
on 01.03.2017 and closed on 22.04.2022 with Pw58;
and it was posted for defence evidence from
11.05.2022; as no defence evidence, it was closed and
posted for arguments on 22.06.2022; and due to filing
of several miscellaneous applications, it has been been
posted for arguments till 23.01.2023.
I submit that it is the specific case of the
accused that they received deposits, but repaid with
interest during trial and obtained necessary receipts,
which was admitted by the depositors during cross
examination. The said facts would prove that the
cognizance of an offence was taken and the accused
were put on notice of the offences/allegation leveled in
the final report and they participated in trial. Now, the
only question before this Court is that whether the 47
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depositors received full settlement or again cheated by
the accused? I further submit that the accused cheated
50 victims to the tune of Rs.1,06,86,000/-. In such a
situation, I submit that the question of fresh cognizance
and fresh trial does not arise.”
4. Heard the learned counsel for the petitioners and the learned
Government Advocate appearing on behalf of the respondent Police.
5. The learned counsel for the petitioners mainly raised two
contentions before this Court. The first contention is that there is absolutely
no indication that the supplementary report filed under Section 173 (8) of
Cr.P.C was taken cognizance. The learned counsel submitted that even
though there is no form prescribed for taking cognizance of a report, there
must be atleast some indication to show that the supplementary report was
taken cognizance by the Court below and that the same is completely absent
in the present case. The learned counsel submitted that this plea is raised by
A6 and A7 who were added as accused by virtue of this supplementary
report.
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6. The second contention raised by the learned counsel for the
petitioners is that the witnesses who were examined had deposed before the
Court that their amounts have been settled and that such settlement had
taken place before the Mediation Centre. However, the Court below without
taking the same into consideration, once again called all the witnesses and
they were examined and they started giving a different version contra to the
earlier evidence tended by them before the Court. Therefore, the petitioners
are seriously prejudiced in this case.
7. The learned Government Advocate appearing on behalf of the
respondent Police submitted that the petitioners cannot be permitted to
question the issue regarding taking cognizance when the trial itself was
completed and the case is at the stage of final arguments. The learned
Government Advocate submitted that it is too late for the petitioners to
knock the doors of this Court at this stage and seek for quashing the
proceedings on the ground that the Court below did not take cognizance of
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the supplementary report.
8. Insofar as the second contention raised by the learned counsel
for the petitioners, it was submitted by the learned Government Advocate
that there were several depositors before the Court below and whether they
were settled in full or were partially settled and there is any more claim that
is yet to be settled by the accused persons, is a factual dispute which cannot
be gone into in this quash petition. Therefore, the learned Government
Advocate sought for dismissal of this petition.
9. This Court carefully considered the submissions made by the
learned counsel on other side and the materials available on record.
10. On carefully going through the report submitted by the Court
below, it is seen that, too much of water has flown under the bridge. The
Court below had taken cognizance of the supplementary report and had
issued summons to A4 to A7, who were added as accused and charges were
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framed against them and they were questioned on the charges which were
denied by them. Thereafter, the prosecution has examined all the witnesses
and questioning was also completed under Section 313(1)(b) of Cr.P.C on
04.05.2022. The case was at the stage of arguments on 22.06.2022. Hence,
the question as to whether the Court below took cognizance of the
supplementary report becomes an academic question in view of the above
facts that can be gathered from the report filed by the learned Special Judge.
11. The second contention that was raised with regard to the
witnesses giving a contradictory version regarding settlement of dues to
them, according to the petitioners, the entire amount has been settled to the
depositors before the Mediation Centre. However, since all the witnesses
were once again recalled, they took advantage of the situation and deposed
as if they were only partially settled. Hence, the petitioners claimed that they
have been seriously prejudiced.
12. In the considered view of this Court, even according to the
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petitioners, the entire settlement had taken place before the Mediation
Centre. The witnesses have also deposed before the Court regarding the
settlement of the amount during the first round of examining them as
witnesses. If those witnesses have given a different version subsequently,
when they were recalled, it is a subject matter of appreciation of evidence
which has to be done only by the trial Court. The petitioners had taken a
very specific stand that the entire amount has been settled and they are
relying upon the deposition of the witnesses and certain materials placed
before the Court. This will also be taken into consideration by the Court
below while appreciating the evidence. It will suffice if this clarity is given
by this Court. This ground raised by the petitioners being factual in nature is
not a ground to be dealt with in a quash petition under Section 482 of
Cr.P.C.
13. In the light of the above discussion, this Court does not find
any ground to interfere with the proceedings before the Court below and it is
left open to the Court below to consider the case on its own merits and in
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accordance with law including the defence that has been taken by the
accused persons and pass final judgment as expeditiously as possible.
14. This Criminal Original Petition is disposed of accordingly.
Consequently, connected miscellaneous petitions are closed.
05.03.2024
NCC: Yes / No
Index : Yes / No
Speaking Order : Yes / No
vji
To
1. The Inspector of Police,
Economic Offence Wing,
Salem District.
(Ref. Crime No.8 of 2015)
2. The learned Special Judge,
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Special Court under TNPID Act,
Coimbatore
3. The Public Prosecutor,
High Court,
Madras.
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N.ANAND VENKATESH, J.
vji
and
Crl.M.P.Nos.3178 and 3179 of 2023
05.03.2024
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