S.Soundaram v. Deputy Commissioner of Police, Central Crime Branch, Egmore, Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 04.12.2012CORAMTHE HON'BLE MR.JUSTICE A.ARUMUGHASWAMYCRL.O.P.No.10415 of 2007S.Soundaram.. Petitioner/Complainant.. Vs ..1. Deputy Commissioner of Police, Central Crime Branch, Egmore, Chennai.2. The Inspector of Police, Central Crime Branch, Team XII, Chennai-8.3. Shoba Rangarao4. Rangarao5. The Assistant Public Prosecutor Mr.Kandaswamy, Additional Chief Metropolitan Magistrate Court, Egmore, Chennai. .. RespondentsPrayer:- Criminal Original Petition filed under section 482 of theCode of Criminal Procedure, praying to direct the Commissioner ofPolice to initiate appropriate action against the Public Prosecutorfor dispensing with witnesses without any authority and causingmiscarriage of justice by dispensing with the Eighty ThreeWitnesses and enabling the accused to go Scot free inC.C.No.10717/2001 on the file of the learned Additional ChiefMetropolitan Magistrate, Egmore, Chennai made in his judgment dated10.08.2006.For Petitioner:Mr.S.AnanthanarayananFor Respondents: Mr.C.Emalias,1 and 2Government Advocate (Crl. Side) For respondents : No appearance3 to 5ORDER The petitioner, who has been cited as one of the witnesses bythe prosecution in C.C.No.10717 of 2001 on the file of the learnedAdditional Chief Metropolitan Magistrate, Chennai, has come forwardwith this petition seeking to set aside the judgment passed by thelearned Additional Chief Metropolitan Magistrate dated 10.08.2006by acquitting the accused therein/respondents 3 and 4 herein and https://hcservices.ecourts.gov.in/hcservices/ also to direct the Commissioner of Police to initiate appropriateaction against the 5th respondent herein/Public Prosecutor fordispensing with 83 witnesses without any authority and causingmiscarriage of justice.2.The facts of the case is as follows:One Meenarajmanikm and others including the petitioner hereinare complainant in C.C.No.10717/2001 before the learned AdditionalChief Metropolitan Magistrate Court, Chennai. The 3rd and 4threspondents are accused 1 and 2 in that matter. The accused 1 and2/respondents 3 and 4 herein run a Financial Corporation by name"Rekha Finance Corporation" in which they collected deposits fromthe general public to the tune of Rs.1,67,29,058/- agreeing torepay the same with interest at 24% p.a. on maturity. Thepetitioner is one such aggrieved person, who has deposited a sum ofRs.3,90,000/-. Since no amount has been repaid to her, she haspreferred a complaint before the 2nd respondent and the same wasregistered by the 2nd respondent in Crime No.983/2001 and oncompleting the investigation, the final report filed by the 2ndrespondent police was taken cognizance by the learned AdditionalChief Metropolitan Magistrate, Chennai as C.C.No.10717/2001 for theoffences under Sections 120-B and 420 read with 34 of IPC. Thecopies of documents have been furnished to the accused and to hisshock and surprise, it was noted that during trial, only 4depositors similarly placed that of the petitioner have beenexamined by the prosecution side and in respect of that 4depositors only, amounts have been settled by the accused and noamount has been paid in respect of the other depositors. At thisstage, the Assistant Public Prosecutor/5th respondent herein whohas represented the Prosecution side has made an endorsement that"the remaining witnesses need not be examined and closed theprosecution". Based on the same, the trial court has acquitted theaccused under Section 248(1) of Cr.P.C. against which the presentpetition was filed by the petitioner who has been cited as W.77 inthe List of Witnesses on the side of the prosecution.3.The contention of the learned Counsel for the petitioneris that except four persons, no depositors have been settled withtheir amounts. The learned Counsel would further submit that atthe time of superannuation, the learned Additional ChiefMetropolitan Magistrate along with the Assistant Public Prosecutorcolluded with the accused and dispensed with the examination ofother witnesses and acquitted the accused thereby allowed them togo scot free. Therefore, the learned Counsel for the petitionerwould submit that the said judgment of the learned Additional ChiefMetropolitan Magistrate made in C.C.No.10717 of 2001 dated10.08.2006 has to be set aside and action has to be initiatedagainst the concerned Assistant Public Prosecutor who has acted ina manner which was prejudicial to the interest of the public. 4.Learned Government Advocate (Crl. Side) would submit thathe has got no objection for the view which has to be taken by thisCourt regarding the dispensation of the witnesses by the 5th https://hcservices.ecourts.gov.in/hcservices/ respondent herein/Assistant Public Prosecutor before the lowercourt and the judicial pronouncement of judgment. He wouldfurther submit that the prosecution side is expected to follow therelevant procedure contemplated under the law. The learnedGovernment Advocate (Crl.side) would also submit that they areready to obey the direction issued by this Court in accordance withlaw.5.No representation for the respondents 3 to 5 despitenotice and the private notice served on the 5th respondent wasreturned as unclaimed.6.Heard the rival submissions made on either side and Ihave also perused the materials available on record carefully.7.A perusal of the entire records would go to show that howthere is purposeful commission and omission had happened in thiscase, since the judicial system has failed in this case, that too,because of the eve of retirement of the Judicial Officer and withthe connivance of the Assistant Public Prosecutor by using theprovisions of law how technically they have settled the amount onlyto four depositors leaving the other 83 depositors in lurch. Eventhough, the petitioner has not produced any documents to show thatthe others have not been settled, on a perusal of the records, itis made clear that except the 4 depositors no one has been settledwith the amount. Further, it is pertinent to note that no appealhas been preferred against the judgment of the learned AdditionalChief Metropolitan Magistrate, Chennai by the prosecution. Thereason, according to the petitioner is that as he has been cited asWitness No.77, he was waiting to give evidence before the court.But unfortunately, after examination of 4 witnesses, the trialCourt has hurriedly closed the case and pronounced the judgment,that too, after getting the endorsement from the Assistant PublicProsecutor in respect of dispensation of other witnesses as "theremaining witnesses need not be examined". But, the AssistantPublic Prosecutor therein/5th respondent herein has notspecifically stated that the amount has been paid to otherdepositors also.8.It is also pertinent to note that even though on twooccasions, private notice has been ordered by this Court to therespondents 3 to 5 on 10.02.2010 and 8.10.2012, it was returned asunclaimed and no response whatsoever is coming from the thenAssistant Public Prosecutor/5th respondent herein.9.In view of all the above, the Registry is directed toaddress the Director of Prosecution to initiate appropriatedepartmental proceedings against the 5th respondent and further, theDirector of Prosecution is directed to furnish all the details tothe 5th respondent. The 2nd respondent is directed to secure theaccused by getting Non-Bailable Warrant from the court and toconduct the case from where they left. Thereafter, the learnedAssistant Public Prosecutor at present is directed to inform the https://hcservices.ecourts.gov.in/hcservices/ status of the case to this Court and the learned Chief MetropolitanMagistrate and the learned Principal Sessions Judge, Chennai arealso directed to follow up the case and to inform about thecommencement of the trial to this Court. This exercise has to becompleted within two months from the date of receipt of a copy ofthis Order.10. It is a case where the petitioner is crying for justiceand has come forward with this petition before this Court. As Ihave already narrated, the petitioner, on his personal capacityparted away with a sum of nearly Rs.3,80,000/-. But till today,she could not get the money back, instead, she could able to hearthe acquittal of the accused from this case. In suchcircumstances, this Court is of the view that it is a fit casewhere this Court can exercise its exclusive power under Section 482of Cr.P.C. 11.In view of all the above, the Criminal Original Petitionis allowed in the following lines:i.The judgment passed by the learned Additional ChiefMetropolitan Magistrate, Chennai in C.C.No.10717 of 2001 dated10.08.2006 is hereby set aside;ii.The matter is remanded to the learned Additional ChiefMetropolitan Magistrate, Egmore, Chennai for de novo trial and thelearned Metropolitan Magistrate is directed to take the case onfile and to issue Non-Bailable Warrant to secure the accused and toproceed further in accordance with law; andiii.As narrated earlier, the Director of Prosecution toinitiate appropriate proceedings against the 5th respondent and tofurnish all the details to the 5th respondent and the presentAssistant Public Prosecutor is directed to report the status of thecase to this Court; and(iv)the learned Chief Metropolitan Magistrate and the learnedPrincipal Sessions Judge, Chennai are also directed to follow upthe case and to inform about the commencement of the trial. Thisexercise has to be commenced within two months from the date ofreceipt of a copy of this Order.12.With the above observation, the Criminal OriginalPetition is disposed of.Sd/-Asst.Registrar/true copy/Sub Asst.Registrartsi https://hcservices.ecourts.gov.in/hcservices/ To1. Deputy Commissioner of Police, Central Crime Branch, Egmore, Chennai.2. The Inspector of Police, Central Crime Branch, Team XII, Chennai-8.3. The Additional Chief Metropolitan Magistrate, Egmore,Chennai.4.The Public Prosecutor, High Court, Madras.5. The Principal Judge, City Civil Court, Chennai.2 cc to Mr.S.Ananthanarayanan, Advocate, SR.No.73476 CRL.O.P.No.10415 of 2007KGK {CO}TP/31.12.2012.