Madras High Court
V.K.Karthick vs The Superintendent Of Police on 2 September, 2024
Crl.OP(MD)No.12307 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 02/09/2024
CORAM
THE HONOURABLE MR. JUSTICE G.ILANGOVAN
Crl.OP(MD)No.12307 of 2019
V.K.Karthick,
Area Manager,
National Bulk Handling Corporation Pvt. Ltd. (NBHC),
No.43A, Sambandha Moorthy Street,
Madurai. : Petitioner
Vs.
1.The Superintendent of Police,
Virudhungar District,
Virudhunagar.
2.The Inspector of Police,
Rajapalayam South Police Station,
Rajapalayam,
Virudhunagar District.
3.The Joint Director,
Central Bureau of Investigation,
73, Athikulam Main Road,
Palanisamy Nagar,
Ramnad Reserve Line, Athikulam, Madurai-625 007.
4.K.Venkatesh
(Impleaded as per the order
of this court, dated 15/10/2018
made in Crl.MP(MD)No.8860 of 2019
in Crl.OP(MD)No.12307 of 2019)
5.The Manager,
Axis Bank,
Rajapalayam Branch.
R5 is suo-motu impleaded as per
order of this court, dated 29/04/2024
in Crl.OP(MD)No.12307 of 2019)
6.V.Kasirajan : Respondents
(R6 impleaded as per the order,
dated 06/08/2024 in Crl.MP(MD)No.6376 of 2024
in Crl.OP(MD)No.12307 of 2019)
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Crl.OP(MD)No.12307 of 2019
Prayer: This Criminal Original Petition is filed
under section 482 of the Criminal Procedure Code to
transfer the investigation with regard to the petitioner's
complaints, dated 06/02/2018, 10/05/2018, 02/01/2019 and
30/05/2019 from the file of the 1st and 2nd respondents to
any other independent Investigating Agency including the
third respondent.
For Appellant : Mr.B.Vijay Karthikeyan
For R1 and R2 : Mr.M.Sakthi Kumar
Government Advocate (Crl. Side)
For 3rd Respondent : Mr.C.Muthu Saravanan
Special Pubic Prosecutor
for CBI
For 4th respondent : Mr.R.Gandhi,
Senior Counsel
for Mr.R.Alagumani
For 5th Respondent : Mr.P.Pethurajesh
O R D E R
This Criminal Original Petition is filed to
transfer the investigation with regard to the petitioner's
complaints, dated 06/02/2018, 10/05/2018, 02/01/2019 and
30/05/2019 from the file of the 1st and 2nd respondents to
any other independent Investigating Agency including the
third respondent.
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2.The facts in brief:-
The petitioner herein sent complaint on various
dates as mentioned in the petition to the second respondent
the Inspector of Police, Rajapalayam South Police Station,
Rajapalayam, with the following averments:-
He is working as Area Manager in National Bulk
Handling Corporation Private Limited (NBHC), Madurai. The
Company is having Cluster/Regional Offices all over the
country. It is dealing with warehousing service, apart from
collateral management service to various Banks and
Financial Institutions. As per the terms of agreement
called 'Collateral Management Agreement' with the Axis
Bank, it advised the complainant to take over the Godown
situated at SRI VENKATESHWARA GODOWN, 25B, China Suraikai
Patti, Street Rice Mill Road, Tal, Rajapalayam,
Virudhunagar District. The Bank appointed the complainant
as Collateral Manager of the Bank to manage the commodities
namely Paddy Raw BPT of one Kasirajan, who is the
borrower). The Godown was taken on lease by the borrower
from one K.Venkatesh the warehouse owner. As per the
agreement, dated 10/03/2017, the borrower handed over the
said Godown to the company on 02/01/2017. The borrower
stored 3927 bags of commodities in the Godown. Based upon
the representation made by the borrower, the company issued
storage receipts, which were in-turn pledge marked in
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favour of Axis Bank, Rajapalayam Branch. The company
provided security services in that Godown. But on
03/01/2018, the warehouse owner K.Venkatesh suddenly put
his lock in the Godown and restricted the Company employees
from entering and performing their duty. The matter was
brought to the notice of the Bank and the Borrower. But
till date, the warehouse owner has not allowed the company
employees to enter into the said Godown. As mentioned
above, the above said complaints and copies of the
complaints were sent to various authorities.
3.Now this criminal original petition came to be
filed by the petitioner on the ground that on 05/05/2018
with the help of the police officials, the petitioner
entered into the Godown and it was decided to shift the
paddy bags from the said Godown. During the shifting
process, V.Kasirajan and Venkatesh were present. At that
time, it was found that there is a short of 1239 paddy
bags. The value of the missing bags is Rs.25,00,000/-.
During that period, the entire premises of Sri Venkateswara
Industries was under the security control and supervision
of K.Venkatesh. So, without the knowledge of the
K.Venkatesh, no one can enter. On further enquiry, it was
revealed that the above said K.Venkatesh and V.Kasirajan
with the help of he employees of the petitioner's company
namely Sevgapandiyan looted 1239 paddy bags worth about
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Rs.25,00,000/-. Over the occurrence, a complaint was lodged
on 06/02/2018 to the Deputy Superintendent of Police,
Rajapalayam, which was forwarded to the Rajapalayam South
Police Station. Further complaint was sent on 10/05/2018 to
the Inspector of Police, Rajapalayam South Police Station.
Since there was no action, again another complaint was sent
on 02/01/2019. Another representation was sent on
30/05/2019. But till date, no proper action is taken. So,
this petition is filed seeking transfer of the
enquiry/investigation in the complaint of the petitioner to
the 3rd respondent herein.
4.Subsequently, K.Venkatesh was impleaded as 4th
respondent, the Manger, Axis Bank, Rajapalayam Branch was
impleaded as 5th respondent and Kasirajan was impleaded as
6th respondent,
5.Before we enter into the respective submissions
made by the parties, the record of proceeding requires to
be briefly summarized.
6.When the matter was taken up for hearing on
15/10/2019, the learned counsel for the petitioner and the
4th respondent namely K.Venkatesh submitted before this
court that the matter may be referred to the mediation for
amicable settlement, since there is possibility of
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settlement between the parties. On that account, the matter
was referred to the mediation. But no settlement could be
arrived at between the parties.
7.When the matter was taken up for further hearing
on 11/02/2022, the learned Additional Public Prosecutor
was required to inform the court as to the stage of the
complaint/FIR. It was submitted to the court that after
enquiry, the complaint was closed. The parties namely the
complainant and the private respondents were permitted to
receive the copy of the closure report from the Enquiry
Officer and thereafter, the matter was listed on various
dates. But later, it was informed to the court that the
enquiry is not yet over and it is still pending. The
affidavit filed by the Enquiry Officer was also placed on
record. The learned Additional Public Prosecutor would
submit that since the matter was referred to the mediation
and there was no settlement between the parties, awaiting
further orders from this court in this petition, it is kept
pending. This is the sequence of record of proceeding
before this court.
8.Now the short point arises for consideration is
whether in the light of the subject complaint, any
exceptional case has been made out by the petitioner to
entrust the enquiry to the third respondent.
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9.The learned Special Public Prosecutor appearing
for the third respondent would submit that they got their
own limitation to take up the complaint only if the
subject of the complaint is above 3 Crores. Another
limitation, according to the third respondent is that now
the State Government has withdrawn the consent for
investigation or enquiry to be undertaken by the CBI in
respect of the issue arises within the state of Tamil Nadu.
We will come to that issue later.
10.Now the learned counsel appearing for the
petitioner would submit that this is not the first
occurrence in the Godown. Similar occurrence took place
previously also. Over which, Crl.OP(MD)No.298 of 2019,
ordered on 24/05/2018, Crl.OP(MD)Nos.1696 and 203 of 2019,
ordered on 30/04/2019, investigation/enquiry was
transferred to CBI. He has also placed those orders before
this court. I am not going to enter in that issue for the
simple reason that whether any exceptional case has been
made out by the petitioner to transfer the case to the
third respondent alone will be taken into consideration.
11.As mentioned above, it is a simple complaint
stating that the 4th respondent K.Venkatesh has put up a
lock over the lock in the Godown and the petitioner's
company officials were prevented from entering into it.
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Later on 05/05/2018, they entered into the premises and
found theft of storage. So, they suspected the 4th
respondent and his own employee by name Sivugapandiyan. So,
the subject complaint can be taken up by the second
respondent himself. This is not the exceptional case, which
requires investigation to be undertaken by the special
agency.
12.Simply because in like complaint, the third
respondent has undertaken enquiry, it need not been
followed in subsequent cases also. Under the facts and
circumstances, every order has its own circumstances. Here,
as mentioned above, the subject complaint does not require
any special agency to look into that aspect.
13.The learned counsel appearing for the petitioner
would rely upon the number of judgments to impress upon the
court that even a complaint can be transferred to a special
agency for enquiry or investigation as the case may be.
Even as per the judgment of this court in Rakindo
Developers (P) Ltd., and The Commissioner of Police,
Greater Chennai, Egmore, Chennai-600 008 and three others
[2009(3)CTC 43], the only criteria for transferring the
enquiry or investigation to the special agency is as to
whether rare and exceptional case has been made out.
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14.Here, as mentioned above, nothing of this sort
has been brought on record that the third respondent is
competent to conduct the enquiry in this matter.
15.The learned Government Advocate (Criminal side)
would submit that a direction may be issued to the 2 nd
respondent in this regard to complete the enquiry so that
it will give finality.
16.The learned counsel appearing for the petitioner
would submit that even though the complaint was given in
2018, there is no progress in the enquiry and the second
respondent is giving contradictory statement before the
court. At one point of time, he has stated that the
complaint was closed. At another point of time, it is
stated that enquiry is still pending, since the matter was
referred to the mediation.
18.No doubt that the second respondent is not
consistent in its stand before this court. But
Mr.R.Meenakshi Sundaram, the learned Additional Public
Prosecutor after verification of the records has made a
statement before this court that enquiry is still pending
and the complaint was not closed. His statement is placed
on record. Even though, in such matters the accused have
not shown, but however, they have been impleaded. They are
represented by Advocates.
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19.The learned Senior counsel appearing for the 4th
respondent would submit that this petition itself is not at
all maintainable and it is nothing, but indirect method of
pressurizing the second respondent herein to register the
FIR. According to him, the subject complaint itself does
not require any registration of the FIR. I am not going
into the allegation of the matter. It is within the
exclusive jurisdiction of the second respondent herein to
find out the truth and further course of action to be
taken. So, I find absolutely no special circumstance has
been brought on record by the petitioner. So, the transfer
request is rejected.
20.Even though, the learned Special Public
Prosecutor appearing for the third respondent would submit
that they are bound by the above two restrictions, it will
not bind the High Court or the Hon'ble Supreme Court as the
case may be to transfer the investigation/enquiry to the
third respondent if any exceptional has been made out.
21.In the result, this petition is dismissed with a
direction to the second respondent herein to complete the
process of enquiry within 15 days from the date of receipt
of a copy of this order. After completing the enquiry,
depending upon the out come of the preliminary enquiry,
further steps may be taken, if it is required. The
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petitioner is at liberty to prosecute the complaint, if
aggrieved over the out come of the enquiry, if goes against
him.
02/09/2024
Index : Yes/No
Internet : Yes/No
er
To,
1.The Superintendent of Police,
Virudhungar District,
Virudhunagar.
2.The Inspector of Police,
Rajapalayam South Police Station,
Rajapalayam,
Virudhunagar District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
G.ILANGOVAN,J
er
02/09/2024
https://www.mhc.tn.gov.in/judis
