LAWS(MAD)-2009-10-25

A V S GANESHAN Vs. STATE

Decided On October 19, 2009
A.V.S.GANESHAN Appellant
V/S
STATE, REP. BY THESUPERINTENDENT OF POLICE, DISTRICT CRIME BRANCH, NAGAPTTINAM Respondents

JUDGEMENT

(1.) THE petitioners herein, who are accused in C.C.No.494 of 2004 on the file of the learned Judicial Magistrate No.I, Mayiladuthurai, are facing trial for an alleged offence under Sections 384, 420 read with 34 IPC.

(2.) THE brief facts which are necessary for the disposal of the above Criminal Original Petition are set-out below:- THE third respondent, who is the defacto complainant, is the wife of one A.V.S.Asokan, who is the brother of petitioners 1 and 2 herein. It appears that the third respondent, Sheela Asokan, started business in the name and style of 'Ambika Jewellers' and 'Ashokan Abarana Maligai and Chit Fund Company' in Mayiladuthurai. She became a sub-tenant of one Chockalingam, who was the principal tenant of the premises of which, one Sabiullah was the owner. THE Sub tenancy was recognised by the said Sabiullah. However, thereafter, she sustained heavy loss in the business and hence she sought the help of the brothers-in-law namely, petitioners 1 and 2 herein, as a result of which they had given Rs.30,00,000/- and had acquired 'Ambika Jewellers' and 'Ashokan Abarana Maligai and Chit Fund Company'. But the case of the third respondent is that petitioners 1 and 2 have threatened her and by coercion and extortion obtained her signature in blank papers and thereby grabbed the said Jewellery Shop from her and hence in order to take action against them, she filed a complaint, which was investigated by the Superintendent of Police and it is understood that the matter was closed. THEreafter, protest petition was filed by the third respondent on the basis of which the learned Magistrate gave a direction to the Inspector of Police to enquire into the matter. THE Inspector of Police conducted enquiry and submitted final report stating that it is a 'mistake of fact'. THE learned Magistrate also recorded as 'mistake of fact' by way of endorsement and this order has been passed on 08.05.2000. THEreafter, since no notice was given to the third respondent, she filed an application before this Court in Crl.O.P.No.3030 of 2000 for transfer of the investigation of the case from the file of the second respondent to the file of the other Police Officer. THE said application was heard by His Lordship Mr. Justice S.Akbar Basha Khadiri, as He then was, and found that inasmuch as the referred notice has already been filed and accepted by the Magistrate, directed the petitioner in the said petition, namely, the third respondent to put forth her objection by way of objection petition and pursue the same. By virtue of the said order dated 29.11.2000 she had filed the petition dated 13.12.2000 raising her objection on the basis of which, the learned Magistrate has passed an order directing the Superintendent of Police, Nagapattinam, to investigate the matter and file a final report. Against the said order, the petitioners herein filed Crl.R.C.No.59 of 2001, but the said revision was dismissed by Mr. Justice A. Packiaraj, by an order dated 21.02.2003, but however, directed the investigation in Crime No.307 of 2000 on the file of the second respondent to be transferred to the file of the Superintendent of Police, District Crime Branch, Nagapattinam, who shall depute higher ranking officer to investigate into the matter and proceed in accordance with law. Pursuant to such direction, the Deputy Superintendent of Police, District Crime Records Bureau, Nagapattinam, took up the investigation, filed the charge sheet for the offence under Sections 384, 420 read with 34 IPC and the same has been taken on file as C.C.No.494 of 2004. Being aggrieved by that, the petitioners have filed the above Criminal Original Petition seeking to quash all further proceedings therein.

(3.) LEARNED senior counsel for the petitioners also relied upon another decision of the Apex Court reported in (2003) 7 Supreme Court Cases 254 (Ramesh Chandra Sinha V. State Of Bihar). In this decision, the Apex Court has laid down that taking cognizance of an offence when it is clearly barred by Section 468 of the Cr.P.C., is not permissible. For the proposition that if the complaint amounts to abuse of process of Court, then, it is open to this Court to exercise its power under Section 482 Cr.P.C., and quash all further proceedings, the learned senior counsel based reliance on a decision of the Apex Court reported in (2008) 11 Supreme Court Cases 520 (M.Saravana Porselvi V. A.R.Chandrashekar).