Eswara Gounder v. K.P.Thangamani

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 9.07.2008CORAMTHE HONOURABLE MR.JUSTICE T. SUDANTHIRAMCrl.R.C.No.1132 of 2006Eswara Gounder ...Petitioner/Defacto ComplainantVersus1. K.P.Thangamani2.State by Inspector of PoliceKavindapadi Police StationErode District. (Crime No.88 of 2006)...Respondents/Petitioner/AccusedRespondent/ComplainantCriminal revision petition preferred against the Order passed bythe learned Judicial Magistrate II, Gobichettipalayam in CMP.No.1214of 2006 in C.C.No.117 of 2006, dated 25.08.2006.For Petitioner : Mr.A.K.KumaraswamyFor Respondents : Mr.N.Manoharan for R1. Mr.N.Kumanan Government Advocate (criminal side) for R2.JUDGMENTThe first respondent herein is an accused in C.C.No.117 of 2006,on the file of the Judicial Magistrate-II, Gobichettipalayam, and therevision petitioner herein is the defacto complainant. The revisionpetitioner has preferred this revision against the order passed bythe learned Judicial Magistrate-II, Gobichettipalayam, inC.M.P.No.1214 of 2006 under Section 239 of the Criminal ProcedureCode discharging the accused from the charges under Section 4 r/w 76(1) of the Chit Fund Act, 1982, and Sections 420 and 409 IPC (threecounts) 2. The case of the prosecution is that during the periodbetween 1990-1995, the accused being the owner of 'Mani finance' andthe said finance establishment was conducted without any sanction ofthe Government. The accused collected deposits from witnesses,Eswara Gounder, Venugopal and Kuppayammal a sum of Rs.1,25,000/-, https://hcservices.ecourts.gov.in/hcservices/ Rs.20,000/- and Rs.95,000/- respectively and on their demand for thereturn of the amount, the accused by executing promissory notes anddeposit receipts and thereby making them to believe that he wouldreturn the money with interest, but subsequently failed to returnthe money to them and repeated demand was made by them in the year1991. Holding a finance meeting the accused instructed the witnessesto tender the promissory notes and deposit receipts (except onepromissory note dated 15.04.1990 for Rs.5000/- executed in favour ofEswara Gounder) and after receiving those promissory notes andreceipts, the accused retained them and subsequently also destroyedand thereby prevented the witnesses from taking any legal actionagainst them to recover the money. Thereby the accused committedcriminal breach of trust and misappropriated the amount of thewitnesses. 3. A petition was filed by the accused before the learnedMagistrate under Section 239 Cr.P.C stating that there was nomaterial to make out a prima facie case against the accused and thecomplaint was filed against the accused only at the instigation ofthe political enemies in the locality. 4. Counter also was filed by the State denying the allegationand also stating that sufficient materials are available against theaccused.5. The learned Magistrate passed the order of discharge statingmainly for the reasons that (i) the prosecution relied upon only twodocuments namely the letter given by the District Registrar,Gobichettipalayam and the one blank pro-note signed by the accusedand there is no whisper about the deposit of Rs.1,67,000/- made inthe finance company either in the FIR or 161 Statement of thedefacto complainant.(ii) the letter given by the District Registrar for the period1989-1991 is not sufficient ground to implicate the accused.(iii) the prosecution failed to point out when the blank pronotewas executed and how the blank pronote came to the custody of thecomplainant and the version of the defacto complainant iscontradictory. (iv) The facts alleged in the complaint is one of civil natureand the defacto complainant tries to get the remedy through criminalcode using blank code approaching the civil court.6. Mr.A.K.Kumaraswamy, learned counsel for the petitioner hereinsubmitted that the learned Magistrate made an erroneous approachwhile discharging the accused and even though the prima facie caseis made out, the learned Magistrate by observing wrong factualdetails in the order and holding that the statement of the defactocomplainant is contradictory, had discharged the accused. https://hcservices.ecourts.gov.in/hcservices/

7. The learned counsel for the petitioner further pointed outthat the statement of the defacto complainant Eswara Gounder andother witnesses Venugopal and Kuppayammal make out a case ofcheating and criminal breach of trust. Though the accused had tomake payment to them, by receiving back the promissory note from thewitnesses, though promissed to return the amount, as he had failed toreturn the amount, the accused had committed an offence of cheatingand misappropriation. There is no reason to reject the statement ofthe witnesses at this stage, as they make out ingredients of theoffences. 8. The learned counsel for the respondent submitted that thecomplaint was given by the defacto complainant with an ulteriormotive and there is no document or material to support the statementof the witnesses under Section 161 Cr.P.C. All the three witnesseswho are said to have deposited the amount to the accused are relatedto each other. Mere suspicion cannot be a ground for framing charges.9. The learned counsel for the first respondent/accused reliedon the decision of the Honourable Supreme Court reported in DilawarBalu Kurane vs. State of Maharashtra (2002(2) SCC 135), where in ithas been held as follows:"12. Now the next question is whether a prima faciecase has been made out against the appellant. Inexercising powers under Section 227 of the Code ofCriminal Procedure, the settled position of law isthat the Judge while considering the question offraming the charges under the said section has theundoubted power to sift and weigh the evidence forthe limited purpose of finding out whether or nota prima facie case against the accused has beenmade out; where the materials placed before thecourt disclose grave suspicion against the accusedwhich has not been properly explained the courtwill be fully justified in framing a charge andproceeding with the trial; by and large if twoviews are equally possible and the Judge issatisfied that the evidence produced before himwhile giving rise to some suspicion but not gravesuspicion against the accused, he will be fullyjustified to discharge the accused, and inexercising jurisdiction under Section 227 of theCode of Criminal Procedure, the Judge cannot actmerely as a post office or a mouthpiece of theprosecution, but has to consider the broadprobabilities of the case, the total effect of theevidence and the documents produced before thecase, the total effect of the evidence and thedocuments produced before the court but should notmake a roving enquiry into the pros and cons of thematter and weigh the evidence as if he wasconducting the trial (see Union of India vs.Prafulla Kumar Samal."-1979 S.C.C(Crl.)609) https://hcservices.ecourts.gov.in/hcservices/

10. The learned counsel for respondent also relied on thejudgment of this Honourable High Court in A.R.Saravanan vs. Statethrough Inspector of Police Crime Branch CID, Madurai reported in(2003-1 LW (Crl.)73), wherein it has been held as follows:"7. The words "groundless" employed in Section 239means there is no ground for presuming that the accusedis guilty. When there is no ground for presuming thatthe accused has not committed an offence, the chargemust be considered as groundless."11. This Court considered the submission made by both partiesand perused all the records. It is the categorical statement of thewitnesses- (i)Eswara Gounder, (ii)Venugopal and (iii)Kuppayammal,that they were all depositing the amount in the finance establishmentof the accused. When they demanded back the money with interest, theaccused did not make the payment. But in the year 2002, the accusedsaying, that he has closed the finance establishments and askedwitnesses to hand over the promissory notes executed by him and hepromised to give money on the next day after verifying the accounts.But he had neither paid the amount nor returned the promissory noteexecuted by him. The main allegation against the accused is not themere non payment of the amount deposited, but having made thewitnesses to believe to make the payment, got back the promissorynotes. The said circumstances spoken by the witnesses to the policeis an incriminating material against the accused. Whether thestatement of the witnesses are true or false cannot be considered atthe stage of framing charges. Whether the statement of the witnesseswere supported by the documents or not also cannot be considered atthis stage. Whether the allegations and averments made against theaccused make out a prima facie case is only to be seen.12. The learned Judicial Magistrate-II, Gobichettipalayam, hadobserved in his order that there is no whisper about the depositamount of Rs.1,67,000/- being made in the finance company either inthe FIR or in the 161 statement. On perusal of the first informationreport and 161 statement, this Court finds the averments being madeby the defacto complainant in the First Information Report as well asin his statement to the police recorded under Section 161 Cr.P.C.,but how the learned Magistrate could make such an observationerroneously is not known. The further observation of the learnedMagistrate in th order is that the prosecution has failed to pointout when the blank pronote was executed and also it is not explainedby the prosecution that how the said blank pronote came to thecustody of the defacto complainant. The one blank promissory notewhich is produced by the prosecution belongs to the witnessKuppayammal and according to her statement, with one particularpronote was available with her. Of course, it may be difficult tobelieve such statement; but at this stage, it is not possible toconclude the averments are false. The Magistrate cannot disbelievethe statement of witnesses at the stage of framing charges byelaborate and painstaking examination of the materials. It has to beseen only that the materials placed before the Court, if unrebuttedwhether would make out a prima facie case against the accused or not. https://hcservices.ecourts.gov.in/hcservices/

13. Even as per the decision of the Honourable Supreme Courtreported in Dilawar Balu Kurane v. State of Maharashtra (2002(2) SCC135), which was brought to the notice of this Court by the learnedcounsel for the petitioner himself, it is oberved that "The Judgewhile considering the question of framing charges under the saidsection has the undoubted power to sift and weigh the evidence forthe limited purpose of finding out whether or not a prima facie casemade out against the accused, where the materials placed before thecourt disclose grave suspicion against the accused which has not beenproperly explained the court will be fully justified in framing acharge......." In view of the above said principle, it cannot besaid in this case that the accused has properly explained thesuspicion which arises against the accused. 14. This Court finds that the prima facie materials availableto proceed against the accused. The order passed by the learnedJudicial Magistrate to discharge the accused is set aside. Therevision petition is allowed.Sd/Asst. Registrar/true copy/Sub Asst. RegistrarksrTo1. Judicial Magistrate-II, Gobichettipayalam.2. -do- 'thro' The Chief Judicial Magistrate,Erode.3. The Public Prosecutor, High Court, Madras.+1 cc to Mr.A.K.Kumaraswamy, Advocate, SR.No.35763+1 cc to Mr.N.Manokaran , Advocate, SR.No.35974Pre-delivery Order inCrl.R.C.No.1132 of 2006BV (CO)SMK/14.7.08