CRL RC/1111/2004 of M/S.SIGNALS AND SYSTEMS(I) Vs MRS.M.RAJINI on 29 December 2004

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 29.12.2004

CORAM:

THE HONOURABLE Mr. JUSTICE V. KANAGARAJ

Crl.R.C.No.1111 of 2004

M/s.Signals & Systems(I) Pvt. Ltd., rep.by its DirectorT.S.Mani..PetitionerVs.Mrs. M.Rajini..RespondentCriminal Revision Case filed under Sections 397 & 401 ofthe Criminal Procedure Code, praying for the relief statedtherein.For Petitioner :Mr.K.Venkatapathy, Senior Counsel for M/s.J.AnandavalliFor respondent : Mr.V.Gopinath, Senior Counsel forMr.M.Udayakumar-------O R D E R

This Criminal Revision Case is directed against theorder dated 27.4.2004 made in C.C.No.1393 of 2001 by theCourt of XI Metropolitan Magistrate, Saidapet, Chennai.2. Heard the learned senior counsel for both andperused the materials placed on record.

3. The brief facts of the case are that therespondent was working as whole time director in thepetitioner company and she was the authorized signatory of

the company and utilizing the said position, she hasmisappropriated a sum of Rs.9,15,000/= by way of 9 chequesbetween 11.01.1999 and 11.3.1999, thereby cheating thecomplainant's company. Therefore, the petitioner, who is thedefacto complainant, filed a complaint under Section 200Cr.P.C. before the court below against the respondent foroffences under Section 406 IPC. The learned Magistrateforwarded the complaint to the Additional DeputyCommissioner, Central Crime Branch, Egmore, Chennai underSection 156(3) Cr.P.C. to register a case and to investigatethe same. However, a case was registered in Crime No.573 of2000 and a final report was also filed by the Inspector ofPolice, CCB for offences under Sections 403, 408 and 477AIPC. But, on trial, the lower court has acquitted therespondent/accused, aggrieved against which, the presentrevision has been filed.

4. During arguments, the learned senior counselappearing on behalf of the petitioner/complainant, besidessubmitting the facts, would further submit that already therewas a quash proceedings filed before this court by theaccused and she has filed Crl.O.P.No.8591 of 2001 in whichshe has admitted herself to be authorised signatory. Severaldocuments which could have been produced by the prosecution,now finding fault with the prosecution, there is a loss ofRs.9,15,000/=, they have not marked and the company has beenput to loss. Police has investigated the case but they havenot properly conducted the prosecution case. They have notexamined the Bank Manager, they have not summoned the chequesthough the money has been withdrawn by the accused. Hence,he would seek to order re-trial of the matter.

5. The learned senior counsel would rely upon ajudgment rendered in ALLARAKHA K.MANSURI vs. STATE OF GUJARAT(2002 SCC 519) wherein in paragraph 7 it is held asfollows:-"The paramount consideration of thecourt should be to avoid miscarriage ofjustice. A miscarriage of justice whichmay arise from the acquittal of guilty isno less than from the conviction of aninnocent. In a case where the trial courthas taken a view based upon conjectures and hypotheis and not on the legalevidence, a duty is cast upon the HighCourt to reappreciate the evidence inacquittal appeal for the purposes ofascertaining as to whether the accused hascommitted any offence or not. Probableview taken by the trial court which maynot be disturbed in the appeal in such aview which is based upon legal andadmissible evidence. Only because theaccused has been acquitted by the trialcourt, cannot be made a basis to urge thatthe High Court under all circumstancesshould not disturb such a finding".

6. In reply, the learned senior counsel wouldsubmit that PW1 became a director only in Sep. 1999. It isan admitted case that he was not aware of the transactionwhich is the subject matter of the case. He was not thedirector at that time and he does not know anything about thedocuments. Admittedly, the petitioner was not a directorthough he has given the complaint. He was not personallyaware of those facts. Learned Magistrate holds that P.W.1does not know anything about those details and rejected hisevidence. P.W.2 was actually incharge of the company when theoffence took place. He did not choose to file the complaint.

7. Discussing the evidence adduced by the otherwitnesses, learned senior counsel would submit that thecheques which are alleged to have been drawn by the accusedare not produced before the Court. No steps were taken tosummon them. No bank accounts produced and the computerisedaccounts of the Company alone has been filed. If it isproduced by the Bank, the cheques should have been produced.These aspects have been considered by the trial court and theacquittal order has been passed since the prosecution hasfailed to prove the case. Though the documents wereavailable, for the purpose of filling up the lacuna, theprosecution did not choose to file the documents.

8. In clarification the learned counsel for thepetitioner would submit that the investigation is defective.Though, P.Ws.4, in his cross examination deposes that it is a

false case registered against the respondent, it has nobearing merely because one witness says something. This isnot a false case. Bank Manager has not been examined. Therehas been miscarriage of justice. There is defectiveinvestigation. Bank statements are still available in theTyped set.

9. In reply, Mr.Gopinath, senior counsel wouldsubmit that there is defective investigation. Now theycannot say that the Bank statements are available. Now theycannot ask for fresh trial for failure of lacuna since it isonly a revision.

10. The learned senior counsel appearing for therespondent would rely upon the decision reported inTHANKAPPAN NADAR vs. GOPALA KRISHNAN (2003 SUPREME COURTCASES (Crl.)1205) wherein it is held:" In a revision application filed bythe de facto complainant against theacquittal order, the Court's jurisdictionunder section 397 read with Section 401Cr.P.C is limited. The law as enunciatedby the Supreme Court does not empower theCourtexercisingtherevisionaljurisdictiontoreappreciatetheevidence".

11. The learned senior counsel appearing for therespondent would also rely upon the decision reported inBINDESHWARI PRASAD SINGH vs. STATE OF BIHAR (2002 SUPREMECOURT CASES (Crl.)1448) wherein it is held:

" The High Court was not justifiedin interfering with the order ofacquittal in exercise of its revisionaljurisdiction at the instance of theinformant. It may be that the High Courton appreciation of the evidence on recordmay reach a conclusion different fromthat of the trial court. But that byitself is no justification for exerciseof revisional jurisdiction under section401 Cr.P.C against a judgment ofacquittal. The judgment of the trial

court cannot be said to be perverse. Nodefect of procedure has been pointed out.There was also no improper acceptance orrejection of evidence nor was there anydefect of procedure or illegality in theconduct of the trial vitiating the trialitself. At best the High Court thoughtthat the prosecution witnesses werereliable while the trial court took theopposite view. In the absence of anylegal infirmity either in the procedureor in the conduct of the trial, there wasno justification for the High Court tointerfere in exercise of its revisionaljurisdiction. It has repeatedly beenheld that the High Court should notreappreciate the evidence to reach afinding different from the trial court.In the absence of manifest illegalityresulting in grave miscarriage ofjustice,exerciseofrevisionaljurisdiction in such cases is notwarranted".

12. The learned senior counsel appearing for therespondent would also rely upon the decision rendered andreported in JAGANNATH CHOUDHARAY AND OTHERS vs. RAMAYAN SINGHAND ANOTHER (2002 SCC Crl.1181) wherein it is held:

"Revision application filed by aprivate complainant against judgment andorder of acquittal of accused passed bytrial court, interference by High Courtwith the judgment and order called foronly in exceptional cases of grossmiscarriageofjustice,manifestillegality or perversity and not merelybecause another view was possible, HighCourt on perusal of the trial court'sjudgment finding the reasons given thereinfor recording acquittal to be not properand justifiable and hence setting asidethat judgment and sending the matter back to the trial court for "writing a freshjudgment by giving proper judicial mind tothe evidence on record". Going through thejudgment of the trial court, held HighCourt exceeded its revisional jurisdictionin setting aside that judgment. Furtherthe direction to re-write the judgment isa significant departure from the normalform of court order and was notjustified."

13. In consideration of the facts pleaded, havingregard to the materials placed on record and upon hearing thelearned senior counsel for both, what this Court is able toassess is that a criminal complaint had been lodged beforethe 11[th] Metropolitan Magistrate, Saidapet, Chennai againstthe respondent for an alleged commission of offencepunishable under section 406 IPC. The learned Magistratehaving referred the complaint to the Additional DeputyCommissioner, Central Crime Branch, Egmore, Chennai for anoffence under section 156(3) Cr.P.C., the case was registeredby the Inspector of Police, Central Crime Branch in CrimeNo.573 of 2000 and investigated into and ultimately thecharge sheet has been filed against the respondent for theoffence punishable under sections 403, 408 and 477A IPC.

14. The case of the complainant therein in short isthat the respondent when she was working as a whole timeDirector in the company as an authorised signatory of thecompany and making use of the said position shemisappropriated a sum of Rs.9,15,000/- by issuing 9 chequesduring the relevant period between 11.1.1999 and 11.3.1999and thereby cheated the complainant company and in the trialheld in the manner mentioned, the court of 11[th] MetropolitanMagistrate, Saidapet, Chennai having conducted a thoroughtrial into the facts and circumstances of the case asprojected by the prosecution and having examined fivewitnesses as oral evidence and marking 15 documents fordocumentary evidence, on the part of the prosecution with nooral or documentary evidence placed on the part of thedefendant and the said Magistrate framing his own point forconsideration and tracing the facts and circumstances of thecase of the prosecution and discussing the merit of the case in evidence placed on record has ultimately arrived at theconclusion to acquit the accused since the prosecution hasfailed to prove the guilt of the accused. The acquittaljudgment rendered by the lower court as per its judgmentdated 27.4.2004 is challenged by the revision petitioner oncertain ground has brought forth in the grounds of revision.

15. A careful perusal of the judgment of the lowercourt would show that the Magistrate has meticulously goneinto the case of the prosecution as alleged from the point ofview of the complaint and that of the charges framed andhaving framed its point for consideration, could dissect theevidence and would ultimately find that the evidence ofP.W.1 itself is a flaw since the witness has not utteredanything about the details required for a decision and infact rejected his evidence. Moreover, it was further found bythe lower court that the complainant himself was not aDirector and he was not aware of the transactions regardingthe subject matter, but the complaint has been lodged throughsuch a person and since they were not able to supply thematerials required for sustaining conviction based on anuntenable case registered on the part of the prosecution ,the trial court would ultimately arrive at a conclusion toacquit the accused/ respondent herein from the charges andset her at liberty. This Court is not able to see any seriousflaw or legal infirmity or inconsistency or patent error orperversity in approach by the learned Magistrate below.Therefore, the interference of this Court sought to be madein the above revision case does not merit acceptance and theonly decision that could be arrived at by this Court is todismiss the above Criminal Revision Case and the same isordered accordingly.

In result, this Criminal Revision Case does not meritacceptance and is liable to be dismissed and is dismissedaccordingly.

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Sd/Asst.Registrar

/true copy/Sub Asst.RegistrarTo 1. THE XITH METROPOLITANMAGISTRATE, SAIDAPET, CHENNAI2. - DO – THROUGH THE CHIEF METROPOLITANMAGISTRATE, EGMORE,CHENNAI+ 2 Ccs to Mr. M. Udayakumar, Advocate SR 58002+ 1 CC to Ms. J. Anandavalli, Advocate SR 57986order in Crl.RC.No.1111 of 2004 29.12.2004 smk (co)bphttps://hcservices.ecourts.gov.in/hcservices/