LAWS(MAD)-2017-6-26

J. SWAMINATHAN Vs. STATE

Decided On June 01, 2017
J. Swaminathan Appellant
V/S
STATE Respondents

JUDGEMENT

(1.) The criminal revision has been filed against the order dated 04.03.2016 in Crl.M.P. No. 3100 of 2015 in C.C.No.82 of 2014 pending on the file of the Additional Chief Metropolitan Magistrate, Egmore, Chennai and set aside the same and consequently, discharge the petitioner.

(2.) The case of the prosecution is that the petitioner is A3 and the petitioner along with other accused entered into a conspiracy and cheated Canara Bank, Overseas Bank, Chennai by availing various credit facilities, by fraudulently not submitting the true and factual financial status of the accused firm, by preparing and submitting forged Hundis, Invoices, Delivery Challans, to fraudulently avail the funds through Inland letter of Credit and Bill of Exchange, without any genuine trade transaction, non maintaining the stocks and non-adherence to the terms of sanction and misappropriating the loan proceeds sanctioned by the bank and thereby caused wrongful loss of Rs.1256 lakhs including interest to Canara Bank, Overseas Branch, Chennai and corresponding wrongful gain to themselves and thereby committed offences punishable under Sections 120(B), 420, 467, 468, 471 of I.P.C and substantive offence under Sections 420, 467, 468 and 471 of I.P.C. The respondent filed charge sheet in RC 13/E/2012 of CBI EOW, Chennai dated 07.09.201 Since, there is no material on record in respect of forgery, fabrication of records or falsification of accounts and in particular, there is nothing on record to link the petitioner/3rd accused to the alleged offence, the charge against the petitioner is groundless and hence, the petitioner filed discharge application in Crl.M.P. No.3100 of 2015. However, the learned Additional Chief Metropolitan Magistrate, after hearing both sides and considering the documents available on records, found that there are prima facie materials available to frame the charge against the petitioner and others and dismissed the discharge petition filed by the petitioner. Against, which, the present criminal revision has been filed.

(3.) The learned counsel for the petitioner would submit that the intention of the accused was not to cheat Canara bank, but, to settle the liabilities to Canara Bank. The offence of cheating is not at all made out and the allegations pertaining to the same are baseless and the petitioner is liable to be discharged. The Honourable Supreme Court has laid down that where there has been repayment of money to banks, even if there is a default, subsequently, the same will not amount to cheating. None of the documents or materials on records would show any involvement of the petitioner/3rd accused in the above process. There is no material on record to even remotely show that the petitioner herein gave any records to the Auditor to prepare the Audited balance sheet. In any event, handing over of records will not in any manner show commission of any offence. The petitioner/3rd accused was never a partner of the fourth accused firm. The respondent has attempted to mislead this Court by showing two isolated instances of small amounts given by the petitioner herein to the fourth accused as "Partners Loan"and the same is ground less. There is no prima facie case against the petitioner to proceed further. However, the trial Court failed to consider the materials on records and mechanically dismissed the application filed by the petitioner.