Madras High Court
V.K.Pandian vs S.Athmanathan on 23 April, 2025
Crl.R.C.(MD)No.368 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 19.03.2025
Pronounced on : 23.04.2025
CORAM:
THE HON'BLE MR.JUSTICE K.MURALI SHANKAR
Crl.R.C.(MD)No.368 of 2024
V.K.Pandian ... Petitioner
Vs.
1.S.Athmanathan
2.The Inspector of Police,
Mattuthavani Police Station,
Madurai. ... Respondents
Prayer : This Criminal Revision Case filed under Section 397 r/w 401
Cr.P.C., to call for the records relating to the order dated 22.01.2024 in
Crl.M.P.No.7957 of 2023 on the file of the learned Judicial Magistrate No.
6, Madurai and set aside the same.
For Petitioner : Mr.V.R.Shanmuganathan
For R1 : Mr.R.Deepak
for Mr.D.Selvanayagam
For R2 : Mrs.M.Aasha
Government Advocate (Crl. Side)
1/14
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Crl.R.C.(MD)No.368 of 2024
ORDER
The Criminal Revision is directed against the order passed in
Crl.M.P.No.7957 of 2023 dated 22.01.2024 on the file of the Court of the
Judicial Magistrate No.6, Madurai, dismissing the petition filed under
Section 190(1) and 156(3) of the Code of Criminal Procedure.
2. The case of the petitioner/complainant is that the first respondent
is a family friend for more than 10 years, that since the first respondent
was not having any job, approached the petitioner and demanded
Rs.30,00,000/- to start a separate business and for the treatment of his
father for his non-functioning of kidney, that the petitioner believing the
words of the first respondent, has sent Rs.25,00,000/- through NEFT
transfer on 23.06.2015 to the bank account of the first respondent's
concern Domains Tech, that though the first respondent has agreed to
return the amount within two years, he was postponing the same on some
pretext or the other, that the first respondent has paid Rs.10,000/- on
27.06.2022, Rs.2,00,000/- on 29.07.2022 and Rs.3,00,000/- on
03.10.2022, totalling Rs.5,10,000/-, that when the petitioner demanded the
amount, the first respondent has undertaken to repay the amount within a
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period of two months, that when the petitioner visited the house of the first
respondent in February-2023, he came to know that the first respondent's
father was not having any illness, that the first respondent, by giving false
information, has obtained the amount and when the same was questioned,
the first respondent admitting his mistake has agreed to return the amount
within a period of one month, that since the amount was not paid, the
petitioner has lodged a complaint before the second respondent police on
13.03.2023, for which, CSR came to be issued, that the first respondent
has agreed to return the amount within a period of one month at the police
enquiry, that since the first respondent has not turned up subsequently, the
petitioner was forced to lodge a complaint before the Commissioner of
Police, Madurai and that since there was no action, the petitioner was
constrained to file the above petition under Section 156(3) Cr.P.C.
3. The learned Magistrate, taking the petition filed under Section
156(3) Cr.P.C. on file in Crl.M.P.No.7957 of 2023, directed the second
respondent police to conduct a preliminary enquiry and to submit a report.
In pursuance of the said direction, the second respondent police has
submitted a report. The learned Magistrate, upon perusing the petitioner's
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affidavit, report submitted by the second respondent police and other
materials available, by holding that the dispute is of civil in nature,
dismissed the petition. Challenging the impugned order, the present
revision came to be filed.
4. Before entering into further discussion, it is necessary to refer the
judgment of the Hon'ble Supreme Court in M/S Indian Oil Corporation
vs M/S NEPC India Ltd., and Others, in Crl.A.No.834 of 2002, dated
20.07.2002, wherein, the Hon'ble Apex Court has deprecated the practice
of attempting to settle the civil disputes by applying pressure through
criminal prosecution and the relevant passage is extracted hereunder:
“10. While on this issue, it is necessary to take
notice of a growing tendency in business circles to convert
purely civil disputes into criminal cases. This is obviously
on account of a prevalent impression that civil law
remedies are time consuming and do not adequately
protect the interests of lenders/creditors. Such a tendency
is seen in several family disputes also, leading to
irretrievable break down of marriages/families. There is
also an impression that if a person could somehow be
entangled in a criminal prosecution, there is a likelihood
of imminent settlement. Any effort to settle civil disputes
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and claims, which do not involve any criminal offence, by
applying pressure though criminal prosecution should be
deprecated and discouraged. In G. Sagar Suri vs. State of
UP [2000 (2) SCC 636], this Court observed :
"It is to be seen if a matter, which is
essentially of civil nature, has been given a
cloak of criminal offence. Criminal proceedings
are not a short cut of other remedies available in
law. Before issuing process a criminal court has
to exercise a great deal of caution. For the
accused it is a serious matter. This Court has
laid certain principles on the basis of which
High Court is to exercise its jurisdiction under
Section 482 of the Code. Jurisdiction under this
Section has to be exercised to prevent abuse of
the process of any court or otherwise to secure
the ends of justice."
While no one with a legitimate cause or grievance should
be prevented from seeking remedies available in criminal
law, a complainant who initiates or persists with a
prosecution, being fully aware that the criminal
proceedings are unwarranted and his remedy lies only in
civil law, should himself be made accountable, at the end
of such misconceived criminal proceedings, in accordance
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with law. One positive step that can be taken by the courts,
to curb unnecessary prosecutions and harassment of
innocent parties, is to exercise their power under section
250 Cr.P.C. more frequently, where they discern malice or
frivolousness or ulterior motives on the part of the
complainant. Be that as it may.”
5. In Mitesh Kumar J Sha vs The State Of Karnataka (Crl.A.No.
1285 of 2021, dated 26.10.2021), the Hon'ble Supreme Court has
reiterated that cloaking a civil dispute with a criminal nature in order to
get quicker relief is an abuse of process of law which must be discouraged.
Bearing the above legal position on mind, let us consider the case on hand.
6. The first respondent has filed a counter affidavit disputing the
petitioner's averments and further stated that the first respondent is
working as a business consultant for more than 10 years and was running a
proprietorship concern in the name and style of Domains Tech at Chennai,
that the first respondent was in the business of arranging SBLC (Stand By
Letter of Credit) for the clients in all over the world on documentation
charges basis and also involved in the business of financial facilitation and
advisory services to the various clients, that one Ravi and the petitioner
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were introduced to the first respondent by one Venkatesh in the year 2014
and they both wanted to invest and take part in the business of financial
facilitation, that after due discussion, all three have decided to invest funds
to do the business and two Memorandum of Understanding (MoU) were
executed among them, that first MoU was executed on 21.06.2015
between YESYESVEE Trade (H) Limited and the said Ravi, in which, the
first respondent was shown as facilitator and the second MoU was
executed between the said Ravi and the first respondent on 22.05.2015 in
respect to the investment done by the said Ravi and the petitioner, that the
petitioner was not added as a party in the said MoU for the reason to avoid
the multiplicity of parties, that the petitioner has invested Rs.25,00,000/-
in the light of the MoU and the said amount was transferred to the account
of the first respondent, that the first respondent has also invested nearly
Rs.28,00,000/- towards his share, that subsequently the first respondent
suffered huge loss in the dropped project to the tune of Rs.80,00,000/- and
has sent a notice to the VASCO company but there was no response, that
the same was informed to the petitioner as well as to the said Ravi and all
the related documents and proofs were circulated to them, that since the
petitioner and the said Ravi were not agreeing with the proof of loss
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occurred in the business, both of them started demanding for return of
their amounts, that the first respondent with a good intention to
compensate them and having a belief that the loss can be overcome by
hard work in few years, has returned Rs.5,10,000/- to the petitioner on
various dates and Rs.5,00,000/- to the said Ravi by way of account
transfer, that the petitioner and the said Ravi under the guise of recovery
of invested amount have been issuing frequent communications and
sending unknown rowdy elements and hooligans to the first respondent's
residence, that they have also started threatening the first respondent and
his family members, that thereafter the first respondent was compelled to
file a suit in O.S.No.2677 of 2023 on the file of the XXIV Assistant City
Civil Court, Chennai for permanent injunction restraining the said Ravi
and the petitioner in any way disturbing the peaceful living and enjoyment
of the residence, that the petitioner did not take any steps to file necessary
suit for recovery and is trying to recover the money by unlawful means
and that the learned Magistrate has rightly dismissed the petition.
7. It is pertinent to mention that the petitioner himself has produced
the copy of the plaint filed by the first respondent against the petitioner
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and the said Ravi in O.S.No.2677 of 2023.
8. The second respondent police in their report has stated that
though the petitioner as well as the first respondent appeared for enquiry
on 19.03.2023, both of them informed that they would sort out their issues
and agreed to appear, that though summons came to be issued directing
them to appear on 26.06.2023 and 05.10.2023, they have not turned up,
that the first respondent has already filed a civil suit and is pending on the
file of the XXIV Assistant City Civil Court, Chennai and that by directing
the parties to sort out their disputes through Court, petition was ordered to
be closed.
9. As rightly contended by the learned counsel appearing for the
first respondent, the petitioner has not disputed the case putforth by the
first respondent in the plaint.
10. Though the petitioner has alleged that the first respondent has
received the amount on 23.06.2015, admittedly, the petitioner has not filed
any suit for recovery of the said amount. As rightly pointed out by the
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learned Government Advocate (Criminal Side), whatever be the
contentions of the parties, there existed some money transactions between
them.
11. The learned Magistrate has rightly observed that the petitioner
has not furnished any particulars with regard to the alleged criminal
intimidation done by the first respondent.
12. The learned counsel appearing for the petitioner would submit
that since their petition under Section 156(3) Cr.P.C. discloses the
commission of cognizable offence, the Judicial Magistrate is duty bound
to forward the complaint to the concerned police for registering an FIR
and that he has no power or jurisdiction to dismiss the same by himself.
The above contention of the learned counsel appearing for the petitioner is
absolutely devoid of merit as the complainant does not have an
unqualified right to demand a police investigation in all circumstances and
moreover, it is not mandatory on the part of the Judicial Magistrate to refer
the complaint to the concerned police for registration of the case. But it is
pertinent to note that it is always open to the petitioner to file a private
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complaint and proceed to prosecute the accused even if the Judicial
Magistrate refuses to exercise the power under Section 156(3) Cr.P.C. It is
settled law that the Judicial Magistrate, while exercising power under
Section 156(3) Cr.P.C., cannot act as a post office and is duty bound to
consider the nature of the accusation or the offences alleged and to decide
about the course of action to be taken and it cannot be said that the order
of Judicial Magistrate refusing to direct the police to register an F.I.R.,
completely shut out all the opportunities for the complainant. If the
petitioner is having necessary particulars and materials to show a prima
facie case against the proposed accused, he can very well file a private
complaint under Section 200 Cr.P.C., and there is absolutely no bar or
prohibition for filing a private complaint on the ground that the petition
filed under Section 156(3) Cr.P.C., was dismissed by the Magistrate.
13. Considering the petitioner's affidavit, plaint filed by the first
respondent and the report of the second respondent police, this Court has
no hesitation to hold that the petitioner has been attempting to give civil
dispute a criminal color and as such, the impugned order dismissing the
petition filed under Section 156(3) Cr.P.C. cannot be found fault with.
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Consequently, this Court concludes that the revision is devoid of merit and
the same is liable to be dismissed.
14. In the result, this Criminal Revision case stands dismissed. No
costs.
23.04.2025
NCC :yes/No
Index :yes/No
Internet:yes/No
csm
To
1. The Judicial Magistrate No.6,
Madurai.
2.The Inspector of Police,
Mattuthavani Police Station,
Madurai.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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https://www.mhc.tn.gov.in/judis ( Uploaded on: 21/05/2025 12:53:22 pm )
K.MURALI SHANKAR,J.
csm
Pre-Delivery Order made in
Dated : 23.04.2025
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