A.S.Prakasam v. State by Inspector of Police Law & Order K-4, Anna Nagar Police Station Chennai-402. & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 21.1.2009CORAMTHE HON'BLE MR.JUSTICE R.REGUPATHICrl.R.C.No.1630 of 2008A.S.Prakasam... Petitioner vs. 1. State by Inspector of Police Law & Order K-4, Anna Nagar Police Station Chennai-402. Raja Mani3. Kandasamy... RespondentsCriminal Revision Case is filed to call for the records inC.C.No.3384 of 2004 on the file of V-th Metropolitan MagistrateEgmore, Chennai and set aside the order dated 16.10.2008 pendingdisposal of the Criminal Revision Case. For petitioner : Mr.C.RajanFor respondents :Mr.R.MuniyapparajGovernment Advocate (Crl.Side)Mr.R.C.Manoharan for R2 & R3O R D E RThe revision petitioner is the defacto-complainant inC.C.No.3384 of 2004 pending trial for an offence under Sections448, 384 and 506(ii) of the Indian Penal Code. The complaint hasbeen given on 16.8.2003 and the first respondent Police, onconclusion of the investigation, filed a final report. 2. It is the case of the prosecution that the complainantborrowed money from the accused and was paying Rs.5,000/- eachfor 10 days. Blank Cheque, pro-note and stamp papers were issuedby the petitioner/complainant. After making full settlement of https://hcservices.ecourts.gov.in/hcservices/ the principal as well as the interest demanded by the accused,the complainant/petitioner requested them to return thedocuments. On 15.8.2003, the accused/the respondents 2 and 3trespassed into his residence and demanded the payment ofRs.60,000/- and threatened the complainant with direconsequences, resulting in the complaint dated 16.8.2003. Pendingtrial of the case, on 8.8.2005 a petition under Section 216 ofthe Criminal Procedure Code, 1973 was filed by the prosecutionand by order impugned dated 16.10.2008, it was dismissed.Aggrieved against the order impugned, the present criminalrevision petition has been filed before this Court.3. The learned counsel appearing for the petitioner submitsthat on perusal of the deposition of P.W.1 and other materialsincluding the First Information Report, Charge Sheet andstatements of the witnesses under Section 161 of the CriminalProcedure Code, not only the offence under Section 384 of theIndian Penal Code, is made out but also offence under Section 4of the Tamil Nadu Prohibition of Charging Exorbitant InterestAct, 2003 is also made out. The petition under Section 216 of theCriminal Procedure Code, has been rightly filed in time after thecomplainant/petitioner was examined in the Court. The Special Actwill operate in addition to the general provisions of the IndianPenal Code, and though all the allegations, averments andmaterials are available during the course of the investigationand trial, it was erroneously omitted and the Court also failedto frame charge under the special provisions of the Act. If thematerials are available before the Court, the charge can bealtered at any time and the petition has been filed in time afterthe examination of the complainant and the order impugned iserroneous and liable to be set aside. 4. It is further submitted that the general provisions ofthe Section 384 of the Indian Penal Code, and the Section 4 ofthe Tamil Nadu Prohibition of Charging Exorbitant Interest Act,2003 operate on different arenas and unless new charges under thespecial provisions are framed, great prejudice will be caused tothe petitioner. 5. Per contra, the learned counsel appearing for therespondents 2 and 3 submitted that they are accused in the casefacing charges for under Sections 448, 384 and 506(ii) of IndianPenal Code, in C.C.No.3384 of 2004. This case has been initiatedas a counter case to the case filed by them for the offencepunishable under Section 138 of the Negotiable Instrument Act inC.C.No.5781 of 2003 on the file of the same learned Magistrate.In a loan transaction, to clear the liability of Rs.2,00,000/-,the cheque was issued on 11.1.2003 and it was returned un-payable. Therefore, the respondent 2 filed a complaint on https://hcservices.ecourts.gov.in/hcservices/

26.2.2003 before the learned Magistrate. After observing all theformalities, the sworn statement was taken on 5.5.2003 and theaccused, namely, the revision petitioner appeared before theCourt on 1.8.2003. 6. It is submitted that when the complainant himself hasappeared as an accused in the cheque bounce case on 1.8.2003, itis all the more impossible for the respondents 2 and 3 to indulgethe offence as claimed on 15.8.2003. More over, the respondent 2is employed in Wheels India Limited and at the relevant point oftime on 15.8.2003, he was in the factory. The respondent 3, whois the brother of the respondent 2, was staying away from theplace of the offence. All the witnesses in the case are theservants of the petitioner and even the independent witness didnot support the case of the prosecution. The case in C.C.No.3384of 2004 itself has been filed belatedly to stall the proceedingsof C.C.No.5781 of 2003 for the cheque bounce case. On the date ofthe filing of the final report and framing of the charges, thepetitioner was fully aware of the penal provisions of the lawsince he is closely following both the cases and the petitionunder Section 216 of the Criminal Procedure Code, has been filedwith ulterior motive. 7. The learned Government Advocate appearing for the firstrespondent submits that the trial of both the cases are pendingbefore the learned Magistrate and that the petition under Section216 of the Criminal Procedure Code, has been filed, since thereare materials to substantiate the offence under specialenactment. 8. Heard the learned counsel on either side and perused thematerials available on record.9. The cheque in question of the case in C.C.No.5781 of 2003is dated 11.1.2003. After it was dishonoured, a notice was senton 20.1.2003 but it was returned unclaimed. The complaint waspreferred before the learned Magistrate on 26.2.2003. Thecomplainant appeared as an accused in the case on 1.8.2003. Evenafter appearance before the Court, the allegation of demandingExorbitant Interest has not been made. When the proceedings hasbeen initiated and when the case is pending before the learnedMagistrate, it is alleged that the occurrence of the case inC.C.No.3384 of 2004 alleged to have taken place. I do not want togo into the merits, demerits of the facts of the case, since itis pending trial before the learned Magistrate. At any rate, suchoccurrence took place after the proceedings under Section 138 ofthe Negotiable Instrument Act had commenced before the learnedMagistrate. The complaint has been given on 16.8.2003 and thespecial Act, namely, the Tamil Nadu Prohibition of Charging https://hcservices.ecourts.gov.in/hcservices/ Exorbitant Interest Act, 2003 came into force on 9.6.2003.Therefore, it must be presumed that the Act was in force even onthe date of the filing of the complaint. Neither in the chargesheet nor in the charges framed by the Court, the specialenactment has not been included. 10. Section 383 of the Indian Penal Code, defines asfollows:383 Extortion - Whoever intentionally puts anyperson in fear of any injury to that person,or to any other, and thereby dishonestlyinduces the person so put in fear to deliverto any person any property or valuablesecurity, or anything signed or sealed whichmay be converted into a valuable security,commits "extortion".11. Sections 3 and 4 of the Exorbitant Interest Act 2003define as follows:3. Prohibition of charging exorbitantinterest:- No person shall charge exorbitantinterest on any loan advanced by him.4. Penalty:- Notwithstanding anythingcontained in the Money-lenders Act, whoevercontravenes the provisions of section 3 ormolests or abets the molestation of any debtorfor recovery of any loan shall be punishablewith imprisonment for a term which may extendto three years and also with fine which mayextend to thirty thousand rupees. The maximum punishment provided under Section 383 of theIndian Penal Code is to the extent of 3 years or with fine orwith both. Maximum punishment provided in both the provisions oflaw is the same. The complainant has willingly paid the interestand by way of defence in the cheque bouncing case the presentcase has been filed. 12. The case in C.C.No.3384 of 2004 has been initiated as acounter case to the case in C.C.No.5781 of 2003. While so,pending trial of the case in C.C.No.3384 of 2004, the petitionunder Section 216 of the Criminal Procedure Code, has been filedbefore the learned Magistrate. I do not want to give elaboratefindings as to the correctness or otherwise of the petition filedunder Section 216 of the Criminal Procedure Code. However, on aperusal of the order impugned and other relevant circumstances, Ido not find any ground to interfere with the order passed. The https://hcservices.ecourts.gov.in/hcservices/ learned Magistrate is directed to take up the proceedings in boththe cases and conclude the same within a period of 3 months fromtoday.13. With the observations, the criminal revision case isdismissed. Consequently, connected M.P.Nos.1 and 2 of 2008 aredismissed. lan Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1.The Inspector of Police Law & Order, K-4, Anna Nagar Police Station, Chennai-402.The V Metropolitan Magistrate, Egmore, Chennai 8.3.Do Through the Chief Metropolitan Magistrate, Egmore, Chennai 84.The Public Prosecutor, High Court, Madras. + 1 cc to Mr. R. C. Manoharan, Advocate, SR No.2445+ 1 cc to Mr. C. Rajan, Advocate, SR No.2453Crl.R.C.No.1630 of 2008MBS(CO)SR/10.2.2009