Selvam v. M/s. Ratna Leather Co.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 22.07.2009CORAM:THE HONOURABLE MR.JUSTICE C.S.KARNANCrl.O.P.No.11150 of 2007andM.P.No.1 of 2007Selvam.. Petitioner.VersusM/s. Ratna Leather Co.,Saram Pondicherry-13,represented by itsProprietor G.Vivekanandanthrough its Power of AttorneyAgent, M. Balasubramanian.. Respondent Petition filed under Section 482 Cr.P.C to call for the recordsof complaint and quash the entire proceedings in C.C.No.114 of 2000on the file of Judicial Magistrate No.II, Pondicherry as an abuse ofprocess of law.For Petitioner : M/s. M.G.SankaranFor Respondent : M/s. P.BuvaneswariO R D E RThe petitioner has filed the above Criminal Original Petition tocall for the records in C.C.No.114 of 2000 on the file of JudicialMagistrate No.II, Pondicherry and quash the same.2.The respondent /complainant filed the case against thepetitioner/accused stating that the petitioner herein approached theproprietor/respondent and sought for employment as Manger statingthat he had vast experience in the field. The accused was offeredappointment as Manager of the company being promoted and he wasinstructed to take necessary steps to get the provisionalregistration and to look after other official works also which arenormally done by managerial personnel. The accused with ulteriormotives had obtained the provisional licence for Rathna LeatherCompany impersonating himself as the proprietor. The accusedobtained the provisional licence on 28.06.1996. When the complainantbecame aware of the said fact, the accused was confronted but he https://hcservices.ecourts.gov.in/hcservices/ stated that it was done mistakenly by him for convenience sake to geteasily without troubling the proprietor. Thus the accused wasrequired to take necessary steps to get the mistake corrected andaccordingly amendments were effected on 06.11.1996 in the provisionallicence No.590317648 dated 28.06.1996 changing the name of ownershipof M/s. Rathna Leather Co, from P.Selvam to G.Vivekanandan. In theno-objection certificate issued by District Industries Centre,Government of Pondicherry, also such an amendment was carried out on05.12.1996. The accused himself had taken necessary steps to effectthe amendment, subsequently, the certificate of Registration underCentral Sales Tax Act and Pondicherry General Sales Tax Act were alsoissued in the name of G.Vivekanandan only as proprietor of RathnaLeather Co.3.The complainant submits that only G.Vivekanandan isrecognised as proprietor of Rathna Leather Company by the office ofthe Deputy Director General of Foreign Trade also. Further, sincethe incorporation of M/s. Rathna Leather Co, only Vivekanandan isoperating the bank accounts in his capacity as sole proprietor. Heonly made necessary application to the Exchange Central Department ofReserve Bank of India for allotment of Exporters Code Number. Theaccused, apart from obtaining the provisional licence bymisrepresenting himself as proprietor was never let to indulge in anyact impersonating as proprietor of M/s. Rathna Leather Company. Thecomplainant submits that the accused, who was engaged as Manager ofM/s. Rathna Leather Company for some time, discontinued his service,when he was queried about certain irregularities found in thefinancial affairs and account books of the company and ever since isvindictively trying to disturb the business of the complainant and tomalign it before every authority under the Government and before itscustomers.4.Further, the accused himself had caused to issue a noticedated 14.04.1997 accepting himself as Manager and Vivekanandan asproprietor of M/s.Rathna Leather Company, but on 05.06.1997 theaccused, utilising the letter head paper of the complainant, wronglyand unauthorisedly sent a letter to the Director of Industries,Pondicherry, claiming that his no-objection was obtained for chage ofownership by force and threats and praying not to change theownership. The accused sent copies of the said letter to 23 personsand offices, including the Assistant Commissioner of Customs(Exports), Air Carriage Complex, Madras-27. Consequently, the dutydraw back (incentives given by the Government at 8% during therelevant period) was stopped for three months from June 1997. Thecomplainant was able to get the said amount after a delay of threemonths, only with much hardship, as the complainant was constrainedto go and explain his ownership. During this period, due to suchcriminal acts of the accused, the name and the business of thecomplainant got affected. The accused, after being removed from https://hcservices.ecourts.gov.in/hcservices/ service of M/s.Rathna Leather Company, has no manner of right toutilise the letter head of the said company and has no authority toaddress anyone impersonating himself as the authorised signatory ofM/s.Rathna Leather Company. The accused, by utilising the letterhead of the complainant and misrepresenting himself as the authorisedsignatory had created a false document to address the Director ofIndustries, Pondicherry on 05.06.1997 with the intention to causedamage to the complainant to part with the property of M/s.RathnaLeather Company and with the intention of committing fraud upon thecomplainant and put up copies of the said letter dated 05.06.1997 toall the persons in various departments. By the said letter, theaccused had also intentionally induced the Madras Customs to omit theact of disbursing the duty drawback due to the complainant, which hascaused damage to the complainant, since the money withheld had putthe complainant into financial constraints and has also caused hardto the mind, reputation and property of the complainant. Further,the accused by personating himself as authorised signatory of M/s.Rathna Leather Company in the letter dated 05.06.1997 had committedcheating by personation. The accused had written the letter dated05.06.1997 in order to cheat the complainant with the knowledge thatwrongful loss will ensue.5.It is also alleged by the complainant that the accused bywriting the letter dated 05.06.1997 and addressing it to so manypersons and authorities had defamed the complainant by imputingdishonest intention and unlawful acts to the complainant and therebycausing harm to the reputation of the complainant which had directlyresulted in loss and harm atleast in the instance of the MadrasCustoms.6.It is further alleged by the complainant that the accused,after seeing the objection and documents filed by the complainant inO.S.No.933 of 1997 and having found that he had no case, on05.01.1999, intimidated the manager of the complainant company withinjury to his person and has also stated that he is going to give acriminal complaint and to drag the complainant to the criminal courtsand to publish it as a news item in order to injure the reputation ofthe complainant.7.It is therefore alleged by the complainant that as theaccused had committed the offences of cheating, cheating byimpersonation, forgery, forgery for the purpose of cheating, andharming reputation and criminal intimidation had made himself liableto be punished under Sections 419, 420, 465, 468, 469 and 506 of IPC.Hence, the complainant has prayed that summons be issued to theaccused, try and punish him under Sections 419, 420, 465, 468, 469and 506 of IPC in the interest of justice. https://hcservices.ecourts.gov.in/hcservices/

8.The petitioner has contended in his quash petition that headmits that the respondent has filed the case before the learnedJudicial Magistrate, Pondicherry on an alleged offence under Sections419, 420, 465, 468, 469 and 506 of IPC. The said case was taken onfile, but the petitioner has alleged that he was served summons underSection 138 of Negotiable Instruments Act in STC.No.10600 of 1999.Subsequently, the STC.No.10600 of 1999 was converted into C.C.No.114of 2000 under Sections 419, 465, 468, 469 and 506 of IPC. Thepetitioner further submits that the said case is in a part heardstage.9.The petitioner has contended that he is advised to statethat complaint was taken on file under Section 138 of NegotiableInstruments Act, after sworn statement, by the learned JudicialMagistrate No.II, Pondicherry and summon was also issued to him forthe said offence. Later, the learened Magistrate converted theoffence under Sections 467, 468, 469 and 506 of IPC and the case wasalso numbered as C.C.No.114 of 2000 from STC.No.10600 of 1999 and sothe case was wrongly taken on the file under Section 138 ofNegotiable Instruments Act.10.The petitioner is advised to state that the learned trialcourt has taken cognizance of the case after applying his judicialmind to the facts of the case under Section 138 of NegotiableInstruments Act after the sworn statement of the PW.1. Further, thepetitioner has contended that there is a procedural flaw in the actof the learned Magistrate to convert the case as C.C.No.114 of 2000and to take the case on file under Sections 419, 465, 468, 469 and506 of IPC. The petitioner is advised to state that once a trialjudge, after taking cognizance of the case under Section 138 ofNegotiable Instruments Act, reached the post-cognizance stage andissued summons under Section 204 Cr.P.C, the trial judge could notswitch back to the pre-cognizance stage and take the case on fileunder difference offences, for which no further statement or freshstatement of PW.1 was taken by the learned Magistrate. It is furtheralleged by the petitioner that once the learned Magistrate takescognizance of the case, then the Magistrate could not review its ownorder by taking the case on file under Sections 417, 463, 468 and 469of IPC by converting the case, which procedure is unknown to law.11.Further, it is contended that the trial court has no rightto take the case on file against the accused for the offences alreadydischarged. Hence, the petitioner has filed this petition to quashthe petition.12.The learned counsel for the petitioner, in support of hiscase has enclosed the following documents. (1) Court summons inSTC.No.10600 of 1999, hearing dated 20.03.2000 (2) Docket order dated https://hcservices.ecourts.gov.in/hcservices/

16.12.1999, 29.12.1999, 27.01.2000, 28.02.2000, 20.03.2000 24.03.2000and 27.03.2000.13.The learned counsel for the petitioner has cited the belowmentioned judgments:-(1)(2006) I SCC (Cri) 460, (Mohammed Yousuf ...vs.. AtaqJahan and another)(2)1993 Law Weekly (Criminal), 557 (Lionel Edmund and sixothers ..vs.. Velmyl Nadar and another)(3) 1977 Law Weekly (Criminal), 1, Part I, (DevarapalliLakshminarayan Reddy and others ...vs.. V. Narayana Reddy and others).The citations annexed by the learned counsel for the petitioner isnot applicable in the present case.14.The learned counsels for the petitioner and the respondentsargued for their respective parties vehemently.15.Considering the contentions of the petitioner as well asthe respondent and arguments of the learned counsel of both theparties, the Court is of the view that the respondent/complaint filedthe case before the learned Magistrate for an alleged offence underSections 419, 420, 465, 468, 469 and 500 of IPC. Supporting thecase, the respondent/complainant has mentioned four witnesses and 13documents. The learned Magistrate, after considering the case,verification of the documents has issued summons to thepetitioner/accused herein as STC.No.10600 of 1999 on an allegedoffence under Sections 138 and 142 of Negotiable Instruments Act.The hearing date was mentioned as 20.03.2000. On that day, thecomplainant and accused were present. The case had been wronglytaken on file under Section 138 of Negotiable Instruments Act.Hence, for consideration on 24.03.2000. Bind over accused.16.After passing this order on 20.03.2000, the learnedMagistrate adjourned the case to 24.03.2000. On 24.03.2000, thecomplainant present, accused present. For consideration on27.03.2000. Bind over accused.17.Again, on 27.03.2000, the case came for hearing, when thecomplainant and accused were present. The case is ordered to beconverted as Calender Case and the case is taken on file underSections 419, 465, 468, 469 and 506 of IPC. For examination of theaccused call on 18.04.2000. Bind over accused.18.In the said case, the character of the case has not beenchanged. Inadvertently the learned Magistrate issued summons to thepetitioner/accused as STC.No.10600 of 1999 on an alleged offenceunder Sections 138 and 142 of Negotiable Instruments Act. If ajudicial officer, by mistake, makes an arithmetical error, clericalerror, accidental error, incidental error, this can always be https://hcservices.ecourts.gov.in/hcservices/ corrected by a Criminal Court. There is no prejudice caused to thepetitioner/accused, if the error is rectified by the same Magistrate.Further the petitioner and the respondent claim proprietorship overM/s.Rathna Leather Company. So, both parties shall face the trialand establish their respective case before the learned Magistrate.If the said case is tried before the Magistrate, the bonafide personas to the proprietor of the firm and other issues can be decided. Inthe interest of justice, trial is necessary. Further, this Courtdirects the learned Magistrate to dispose the case within six months.19.Hence, the Criminal Original Petition No.11150 of 2007 hasgot be dismissed and accordingly dismissed. Consequently, connectedMiscellaneous Petition is closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarmraTo1.The Judicial Magistrate No.II, Pondicherry.2.-do- Through The Chief Judicial Magistrate,Pondicherry.3. The Public Prosecutor, High Court, Madras.1 cc To Mr.R.Vivekananthan, Advocate, SR.34281. Crl.O.P.No.11150 of 2007 and M.P.No.1 of 2007 TS(CO)RVL 21.08.2009