CRL OP/13431/2008 of KETHARIGNANAM Vs N.SASIKUMAR on 30 December 2009

O R D E R

This petition has been filed by the 1[st] and 3[rd] in C.C.No.213of 2007 before the lower court to quash the proceedings pendingagainst them as not sustainable.

2. The material facts submitted by the petitioners inthe petition are as follows:

The respondent as complainant had presented a complaintbefore the learned Judicial Magistrate II, Karaikal and it wastaken on file in C.C.No.213 of 2007 for the alleged offence u/s.464 and 420 I.P.C as a private complaint. The respondent as thecomplainant had averred that he was working as a salesman in oneM/s. Ram Kumar Agencies from 2001 onwards and he was said to haveentrusted 10 cheque leaves to the 2[nd] petitioner/A3 as a loyal,sincere and faithful worker and A3 did not settle salary dues andincentives to the respondent/complainant and one of the chequeshttps://hcservices.ecourts.gov.in/hcservices/entrusted by the respondent/complainant was handed over by the 1[st]and 3[rd] accused to one Mr.Prabakaran, son of Ramalingam who isalso arrayed as 4[th] accused in the above complaint and it was typed by the 4[th] accused for a sum of Rs.3,80,000/- and the saidcheque was dishonoured for the reason "funds insufficient" forwhich A4 preferred a complaint u/s. 138 of the NegotiableInstruments Act on the file of the Judicial Magistrate No.II,Karaikal and therefore the petitioners namely A1 and A3 havecommitted the offences u/s. 464 and 420 I.P.C.

3. The said complaint filed by the respondent was againstfour persons in which A4 is a stranger to other persons and the1[st] petitioner/A1 is the proprietrix of Ram Kumar Agencies and A2is one Naganathan, the Manager of Ram Kumar Agencies. A3 the 2[nd]petitioner herein is a pharmacist in E.S.I and A4 has nothing todo with the said Ram Kumar Agencies nor any connection with theaccused 1 to 3. The complainant who was working as a salesmanunder the 1[st] petitioner was drawing his salary every monthwithout fail. His duty was to collect the amounts from variousshops for which he misappropriated some of the amounts due to theRam Kumar Agencies and therefore the 1[st] petitioner filed acomplaintbeforetheKaraikalpolicestation.Therespondent/complainant did not pay the amounts collected fromM/s. Commercial Traders to the 1[st]petitioner/A1. Therespondent/complainant had given a false complaint only to divertthe attention from the issue of the said misappropriation of cashand to escape from the criminal proceedings.

4. The respondent/complainant never handed over the chequeleaves to the petitioner and there is no need to hand over thecheque leaves to A4 Mr.Prabakaran who is a stranger to thepetitioners. The allegations made by the respondent in thecomplaint are completely wrong and they were made only to escapefrom the clutches of criminal proceedings pending inS.T.R.No.1308 of 2007 on the file of Judicial Magistrate II,Karaikal u/s. 138 of N.I.Act.

5. The respondent had also filed a complaint before theLabour Officer against the 1[st] petitioner and he did not mentionthe name of the 2[nd] petitioner/A3 as the owner of Ram KumarAgency. Having filed a complaint before the labour court and acomplaint against him u/s. 138 of N.I.Act is pending before him,the present complaint filed by the respondent against thepetitioner and two others is a false one and it was given inorder to escape from the clutches of the criminal proceedingspending against him filed by the accused A4. The alleged offenceu/s. 464 I.P.C is not at all made out against the petitioners asthey never created any document against the respondent herein.The respondent has also not produced any material to prove theoffence u/s. 420 I.P.C. The complaint filed by therespondent/complainant is an abuse of process of law and it hasbeen filed by the respondent for only to harass the petitioners.

6. The allegations in the complaint are vague and nospecific allegations or averments against the petitioners for thecommencement of such allegations. The dispute between the 1[st]https://hcservices.ecourts.gov.in/hcservices/petitioner and the Commercial Traders is not relevant to therespondent/complainant. Even though the allegations made by therespondent is said to have taken place on 14.12.2005, the respondent has filed a complaint on 05.11.2007 and the delay inlodging the complaint was almost after a period of two years,which would show its falsity. The petitioners/accused 1 and 3were not connected with Section 138 N I Act proceedings initiatedby petitioner/A4. Therefore, there is no question of any criminalliability against them. Therefore, the criminal proceedings inC.C.No.213 of 2007 on the file of Judicial Magistrate II,Karaikal has to be quashed.

7. Heard Mr. Ilanthirayan, learned counsel for thepetitioner and Mr.K.Rajasekaran, learned counsel for therespondent.

8. The learned counsel for the petitioners would submit inhis argument that the petitioners herein are the accused 1 and 3before the lower court in C.C.No.213 of 2007 pending on the fileof Judicial Magistrate II, Karaikal. The petitioners have soughtfor quashing the complaint filed against them, since it has norelevance against them for incriminating u/s. 464 I.P.C or u/s.420 I.P.C. though the allegations made in the complaint. He wouldfurther submit that the 1[st] petitioner/A1 is no doubt theproprietrix of the Ram Kumar Agencies in which therespondent/complainant was working as a salesman and he haslaunched a complaint before the labour court for the arrears ofsalary which is said to have not been given by the 1[st]petitioner/A1 and the 2[nd] petitioner/A3 is not at all connectedwith A1 concern and the 2[nd] petitioner /A3 is working as apharmacist on E.S.I and therefore there was no connection oraccess what so ever with the respondent/complainant.

9. No doubt, he has participated in settling the disputeemanated between 1[st] petitioner concerned with M/s. CommercialTraders in respect of dispute of commission for the goodssupplied by the Commercial Traders. He would further submit thatthe said proceedings before the labour court is pending foradjudication. Therefore, the allegation that the incentives andsalary dues have not been paid by the A1/1[st] petitioner hereinand the liability of 2[nd] petitioner/A3 have to be adjudicated onlyby the labour court in the said proceedings only, it has to bedecided as to whether there was any necessity to proceedcriminally also.

10. He would further submit in his argument that thecomplaint has been given in order to harass the petitioners as tothe non payment of salary or incentives would only amount to acivil liability which has to be adjudicated either by the civilcourt or labour court and not by a criminal forum and that toothe 1[st] petitioner who is the owner of the Ram Kumar Agencies hasto answer. He would also submit that it is significant that thecomplainant did not include the 2[nd] petitioner/A3 before thelabour court. The ingredients of Sec. 420 I.P.C would not applyto the facts of the case as it is purely a non payment of salaryhttps://hcservices.ecourts.gov.in/hcservices/and it is also denied by the 1[st] petitioner.

11. He would further submit in his argument that the alleged handing over of the cheques by the respondent/complainantwith the petitioners are not true and the petitioners did notknow about Prabakaran who is said to have filed the complaintu/s. 138 N.I.Act against the respondent and it is no wayconnected with the petitioners.He would also submit that thecomplainant had purposely clubbed A4 as one of the accused inthis case, in order to give colour that the petitioners havejoined with A4 to initiate proceedings u/s. 138 N.I.Act. The saidcase of the complainant is not sustainable against thepetitioners since they did not know the said A4 Prabakaranpreviously. He would also submit that the complainant hadclandestinely included A4 in this case so as to counter thecomplaint u/s. 138 N.I.Act filed by the said 4[th] accused.

12. He would also draw the attention of this court to thejudgment of Hon'ble Apex court reported in 2008 1 CTC 338 B.Suresh Yadav vs. Sharifa Bee and Another for the principle thatthe complaint filed by a person for the liability of civil naturecannot be taken up and be proceeded both in civil and criminalside, at the same time. He would also cite a judgment of Hon'bleApex Court (2000) 2 SCC 636 between G. Sagar Suri v. State ofU.P. and others for the proposition that the complaint filed by aperson in counter to the complaint u/s.138 N.I.Act already filedand pending is not sustainable. He would also bring it to thenotice of the court that the allegations made against thepetitioners would not attract the ingredients of Sec 464 or 420and therefore the said complaint filed u/s. 464 and 420 is notcorrect. He would submit that it is only an abuse of process oflaw adopted in order to harass the petitioners and therefore ithas to be quashed.

13. Learned counsel for the respondent would submit in hisargument that the 2[nd] petitioner/A3 received monies from thecomplainant on several occasions and he put his signature as awitness in respect of the agreement entered into between M/s. RamKumar Agencies and M/s. Commercial Traders and therefore itcannot be said that he has no connection with the transactionmentioned in the complaint as he was only a pharmacist in E.S.I,Puducherry. He would further submit in his argument that theaverments made in the complaint accusing the petitioners requiresthe examination of witness to substantiate them and therefore, itcannot be decided in this petition that there is no case againstthe petitioners. He would also submit that the petitioners beingthe accused 1 and 3 have not come to court with clean hands bydisclosing all the facts and therefore the petition cannot beordered.

14. He would also submit that the delay in filing thecomplaint will not matter because it was well within the periodof limitation. He would again submit in his argument thatthe complainant was agitating against the petitioners all alongand therefore the allegation made against the petitioners thatthey made the complainant to sign in certain documents, wouldhttps://hcservices.ecourts.gov.in/hcservices/require evidence and therefore the complaint cannot be quashedu/s. 482 Cr.P.C without trial. He would further submit that thecomplaint before the labour court had been preferred only at a later part of time and therefore, he did not preferr anycomplaint prior to it. He would also cite a judgment of Hon'bleApex court in 2008 (1) Scale 331 between M/s. SuryalakshmiCotton Mills Ltd vs. M/s. Rajvir Industries Ltd and Ors for theproposition that the completion of other proceedings would give acomplaint to be filed by the complainant in future which cannotbe a ground for quashing any proceedings. Therefore, he wouldrequest the court to dismiss the petition filed by thepetitioners.

15. I have given anxious thoughts to the arguments advancedon either side. Petition has been filed by the petitioners/A1 andA3 for quashing the complaint filed by the respondent againstthem along with two other accused A2 and A4 u/s.420 and 464I.P.C. For the purpose of better appreciation the ingredients ofSec.420 and 464 are to be extracted. Accordingly Section 420I.P.C. would run as follows:

The involvement of petitioners u/s.420 I.P.C which has beencategorically mentioned by the complainant in the complaint filedby him was to the effect that the 2[nd] petitioner/A3 had receivedmonies from the complainant on the promise that he would repaythe same for the expenditure of his sister's marriage through thecollection of those incentives. He had obtained 10 signed chequesof the complainant. Admittedly the 2[nd] petitioner Ulaganathan A3is working as a pharmacist in E.S.I, Puduchery. According to thecomplainant, he is the actual conductor of M/s. Ram KumarAgencies to which A1 is the owner. A2 who is not a petitionerherein is said to be the manager. The points stressed by thelearned counsel for the respondent that A3 had involved in thetransaction of collecting monies from the incentives of therespondent/complainant and had obtained blank cheque leaves fromthe complainant when he had signed as a witness in a transactionbetween the A1 company (i.e) Ram Kumar Agencies withM/s.Commercial Traders. No doubt, he has signed in the saidcompromise entered into between the said parties. But it will notconfer any right over the 1[st] petitioner concerned. It is not thecase of the complainant that he signed on behalf of the Ram Kumarhttps://hcservices.ecourts.gov.in/hcservices/Agencies. Therefore, on the basis of the complaint, we cannot seea prima facie case that A3 is conducting the A1 company and hadreceived monies from the complainant collected towards incentives

and had promised to give the money at the time of his sister'smarriage. It was an admitted fact that he was not made as a partybefore the labour court. Indisputably, the complaint waslaunched by the complainant before the lower court for the samecause of action against A1. The collection of incentives andpayment of arrears of salary and any amount due from themanagement of A1 is payable to the complainant should have beendecided only by the labour court. The non payment of incentives,even if true, and the non payment of salary will not ripe intoany criminal liability against the petitioner/A1 herein.

16. Therefore, we could see that the averments made in thecomplaint itself did not show any prima facie case to pursueagainst the accused A1 and A3 u/s. 420 I.P.C. The ingredients of420 I.P.C is not prima facie established through the avermentsmade in the complaint. At this juncture the judgment of Hon'bleApex court reported in 2008 (1) CTC 338 in between B. SureshYadav v. Sharifa Bee and Another is relevant to decide the pointat issue. In paragraph 13 of the said judgment it has been laiddown as follows:"13.Forthepurposeofestablishing the offence of cheating,the complainant is required to show thatthe accused had fradulent or dishonestintention at the time of making promiseor representation. In a case of thisnature, it is permissible in law toconsider the stand taken by a party in apending Civil litigation. We do not,however, mean to lay down a law that theliability of a person cannot be bothcivil and criminal at the same time. Butwhen a stand has been taken in acomplaint petition which is contrary toor inconsistent with the stand taken byhim in a civil suit, it assumessignificance."

On a careful perusal of the said judgment we could see that theallegation made in this complaint contra to the complaint beforelabour court without including A3 is significant and thereforethe complaint given by the respondent against A1 and A3 thepetitioners herein u/s. 420 has no legs to stand against them.

17. As regards the averments made against the petitionersin respect of commission of offence u/s. 464 and 34 I.P.C areconcerned, we have to see the remaining averments in respect ofthe commission of such offence. According to the averments in thecomplaint the 3r accused (i.e) 2[nd] petitioner, had collected 10signed cheques of the complainant. The incentives collected bythe complainant and the complainant as a loyal and obedientservant of the accused company had issued all the 10 chequehttps://hcservices.ecourts.gov.in/hcservices/leaves to A3 and A3 in turn had given it to A4 for preparation ofthe alleged cheque for filing the complaint u/s.138 of N.I.Act.It is an admitted fact that A4 namely Prabakaran had sent notice for dishonouring of cheque to the tune of Rs.3,80,000/- given bythe complainant and the complaint filed was taken on file inS.T.R.No.1308/2007 before Judicial Magistrate II, Karaikal. It isalso an admitted fact that the present complaint has been filedonly after the proceedings u/s. 138 of N.I. Act filed by A4.Therefore, it is no doubt true that the complaint is filed by thecomplainant including A4 in this case, as a counter blast for thesaid case.

18. The arguments advanced by the learned counsel for thepetitioners would be that the petitioners did not know A3 at alland they are not at all concerned with the transactions held inbetween the A4 and the complainant. The said fact has to beconsidered only in the proceedings under Section 138 N.I.Act. Therespondent/complainant had also given a reply to the statutorynotice issued by A4 before launching the criminal complaint underSection 138 N.I. Act. The merits and demerits of the contentionsmade in the complaint and in the reply notice should have beenconsidered only in the said complaint. Indisputably, presentcomplaint has been launched by the complainant only after thesaid 138 N.I. Act proceedings. At this juncture the judgment ofHon'ble Apex court reported in 2000 (2) SCC 636 in betweenG.Sagar Suri and another vs. State of U.P. and Others is relevantfor the present case. The relevant passage would be thus:"8. Jurisdiction under Section 482 ofthe Code has to be exercised with great care.In exercise of its jurisdiction the HighCourt is not to examine the mattersuperficially. It is to be seen if a matter,which is essentially of a civil nature, hasbeen given a cloak of criminal offence.Criminal proceedings are not a short cut ofother remedies available in law. Beforeissuing process a criminal court has toexercise a great deal of caution. For theaccused it is a serious matter. This courthas laid certain principles on the basis ofwhich the High Court is to exercise itsjurisdiction under Section 482 of the Code.Jurisdiction under this section has to beexercised to prevent abuse of the process ofany court or otherwise to secure the ends ofjustice."

According to the aforesaid judgment it is very clear that thejurisdiction of High court u/s. 482 has to be exercised withgreat care and at the same time it has to consider the exerciseof its jurisdiction when a matter of civil nature had beenconverted into a criminal offence and the lower courts havefailed to disallow such practice. It is further said that thelower courts should have very much exercised care before issuingsummons and if it was not followed by the lower court, the Highhttps://hcservices.ecourts.gov.in/hcservices/court has to certainly exercise its jurisdiction to set asidesuch abuse of process.

19. As far as this case is concerned, it has been alreadyprima facie seen that A3 was not shown as the owner of the A1company and therefore, there can be no necessity to act on behalfof A1 company to obtain cheque leaves from the complainant. Inthe aforesaid circumstances, it cannot be said that he had handedover the said cheque leaves to a stranger A4 for filing 138 ofN.I. Act against the respondent/complainant.

20. These evidence are to be considered as defence inS.T.R.No.1308/2007 before the Judicial Magistrate, No. II,Karaikal as contended by the respondent/complainant. A3 may beone of the witnesses either on the side of the complainant or asa defence witness for the purpose of proving or disproving theevidence produced in the said case.

21. For the appreciation of said allegations made in thecomplaint the ingredients of Section 464 is necessarily to beextracted. Section 464 would run as follows:

464. Making a false document: A person issaid to make a false document of falseelectronic record: First-Who dishonestly or fraudulently-(a) Makes, signs, seals or executes adocument or part of a document;(b) Makes or transmits any electronic recordor part of any electronic record;(c) Affixes any digital signature on anyelectronic record;(d) Makes any mark denoting the execution ofa document or the authenticity of the digitalsignature,With the intention of causing it to bebelieved that such document or part ofdocument, electronic record or digitalsignature was made, signed, sealed, executed,transmitted or affixed by or by the authorityof a person by whom or by whose authority heknows that it was not made, signed, sealed,executed or affixed; or Secondly- Who, without lawful authority,dishonestly or fraudulently, by cancellationor otherwise, alters a document or anelectronic record in any material partthereof, after it has been made, executed oraffixed with digital signature either byhimself or by any other person, whether suchperson be living or dead at the time of suchalteration; orThirdly- Who dishonestly or fraudulentlycauses any person to sign, seal, execute oralter a document or an electronic record orhttps://hcservices.ecourts.gov.in/hcservices/to affix his digital signature on anyelectronic record knowing that such person byreason of unsoundness of mind or intoxication cannot, or that by reason of deceptionpractised upon him, he does not know thecontents of the document or electronic recordor the nature of the alterations; The averments made in the complaint as against the petitioners/A1and A3 do not incriminate them to see a prima facie case for theconduct of trial. The allegations made against the petitioners inthe complaint, tend to be of civil nature which have to bedecided by competent court for the purpose of deciding theliability. As regards the payment of salary a petition is filedand pending before the labour court in which A3 was notimpleaded.

22. In the aforesaid circumstances, the civil liabilitycannot be made or given a cloak of criminal offence. The judgmentof Hon'ble Apex court reported in 2000 (2) SCC 636 to the effectthat the criminal proceedings are not a short cut for otherremedies is patently seen in the present case.

23. There is no prima facie case found against thepetitioners in respect of the offences said to have beencommitted u/s. 420 and 464 I.P.C. The judgment of Hon'ble Apexcourtsubmittedbythelearnedcounselfortherespondent/complainant reported in 2008 1 Scale 331 in betweenM/s. Suryalakshmi Cotton Mills Ltds vs. M/s. Rajvir IndustriesLtd and ors is not applicable to the present facts andcircumstances of the case, as the averments of the complaint evenif given face value and taken to be correct in its entirety doesnot constitute any offence u/s. 420 and 464 I.P.C against thepetitioners.

24. For the discussion held above this court is of the viewthat the lower court ought not to have taken the complaint on itsfile since there was no incriminating allegations orcircumstances to take cognizance that the petitioners havecommitted such offence against the respondent/complainant.

25. Therefore it has become necessary for this court toexercise its jurisdiction u/s. 482 Cr.P.C to prevent the abuse ofprocess of law and to secure the ends of justice and therebyquash the proceedings pending before the lower court as asked for.26. Accordingly the criminal original petition is allowed.Consequently connected miscellaneous petitions are closed.

https://hcservices.ecourts.gov.in/hcservices/

To

1. Judicial Magistrate No.II, Karaikal

2.-do- Thro' The Chief Judicial Magistrate,Pondicherry.

+1cc to Mr.K.Rajasekaran,Advocate Sr 71883

+1cc to Sri,Bharath & Ilan, Advocate SR 71862

TEJ(CO)km/26.2.

Crl.O.P.No.13431 of 2008&M.P.Nos.1 and 3 of 2008