K.E.Jayaraman v. R.Balakrishnan

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 06.07.2012CoramTHE HON'BLE MR.JUSTICE C.S.KARNANCrl.R.C.No.360 of 2006K.E.Jayaraman.. Petitioner/complainant Vs.R.Balakrishnan.. Respondent/AccusedPrayer :-Criminal Revision is filed under Section 397 r/w 401 ofCr.P.C., against the order of dismissal dated 18.01.2006 made inC.M.P.No.754 of 2005, passed by the XI Metropolitan Magistrate,Saidapet, Chennai - 15.For Petitioner : No appearanceFor Respondent : No appearance- - -ORDERThe petitioner / complainant has submitted that SriVijayaraghavalu Chetty and Smt.Narasamma Estate was founded in theyear 1909 by Vijayaraghavalu Chetty and Narasamma to perform certainfestivals, Mandapapadis and for conducting religious lectures in SriPrasanna Venkata Narasimha Perumal Temple, Saidapet. The founder ofthe trust entrusted valuable income fetching house properties to thetrust. The accused and other trustees were elected in the year 1996.Since elected managing trustee C.N.Mohanraj resigned from the post in1998, the accused is now administering the trust. The accused,misusing his power swindled the trust monies and the income of thetrust was not deposited into the bank account. It was submitted thatthe accused failed to submit true and correct account to thecomplainant and other beneficiaries of trust, in spite of demand andas such, the accused committed an offence of cheating and criminalbreach of trust. The complainant, at first preferred the privatecomplaint before the Court of XI Metropolitan Magistrate, Saidapet,Chennai-15 on 05.06.2003 under Section 200 of Criminal ProcedureCode, 1973, alleging that the accused had committed an offence of https://hcservices.ecourts.gov.in/hcservices/ cheating and criminal breach of trust, punishable under Sections 409,420 and 477(A) of IPC, 1860. 2. The same was forwarded to Deputy Commissioner of Police,Central Crime Branch, Egmore for investigation under Section 156(3)of Cr.P.C. On receipt of complaint, the case was registered inX.Cr.No.435/2003 under Sections 420, 409, 477(A) of IPC and negativefinal report was filed by the police on 22.02.2005 referring thematter as mistake of facts. Notice was sent to the complainant tomake his submission on negative final report. The complainantpreferred protest petition in C.M.P.No.754 of 2005, on 01.03.2005.3. It was submitted in the protest petition that thecomplainant filed a report before this Court against the secondrespondent. The complaint was sent to police on 5th June 2003 underSection 156(3) of Cr.P.C. for registration of a case and forinvestigation. It was submitted that the first respondent instead ofregistering the case conveniently gave room to the second respondentto move anticipatory bail and registered a case in Crime No.435 of2003, only on 14th June 2003 in order to comply with the direction ofthe Court and that the case did not progress after that.4. As a huge amount had been swindled by the secondrespondent shaking the very existence of a religious institution, thecomplainant filed Crl.O.P.No.36838 of 2004 under Section 482 ofCr.P.C. The High Court was pleased to pass an order on 1st December2004, after analyzing the prayer on the injustice done on the funds.A direction was issued to complete the investigation within threemonths to file the final report. As the time was fixed for completionof investigation, the investigation officer by doing table work,without any enquiry, referred the case as mistake of facts, whenconcrete materials were available establishing a prima-facie case forprosecution.5. It was submitted that when there are similar complaintsagainst the second respondent for different contraventions in theCity Crime Branch, out of which a charge sheet has been filed inC.C.No.4133 of 2004, on the file of XI Metropolitan Magistrate Court,at Saidapet by the III Team of Central Crime Branch in one complaint,the referring of the case in X.Cr.No.435 of 2003, as mistake of factsshows a bias attitude to close the case without any enquiry. It wassubmitted that the auditors balance sheet and income and expenditurestatement is based on the information provided by the accused.Therefore, it should not be taken as granted and be reckoned as realaccounts of the estate. It is for the investigation officer toascertain the veracity of these statements by calling all the booksof accounts such as cash book, day book, general ledger, bills,receipts etc., pertaining to the estate from the accused to unearththe facts. Hence, it was prayed to direct an investigation without https://hcservices.ecourts.gov.in/hcservices/ accepting the report of the present investigation officer.6. After considering the nature and circumstances of thecase, the XI Metropolitan Magistrate ordered on 01.04.2005 to conductenquiry and the sworn statement of the witness, viz., K.F.Jeyaraman,M.Sriniavasan, A.G.Damodharan and K.Damodharan were recorded. Thelearned XI Metropolitan Magistrate observed that all the witnesses intheir sworn statements deposed that the accused as managing trusteeof trust mis appropriated huge funds of trust and acted against thewishes of founders of trust. The witnesses admitted that the accusedis elected trustee and holding officer.7. The learned Magistrate observed that the trustee is anon living jurisdic person and it cannot act on its own, and so itcan act only through living person as trustees. The learnedMagistrate observed that the accused is representing the trust and sotill he represents the trust, he cannot be proceeded against by thetrust, because the person cannot prosecute against himself.8. The learned Magistrate observed that if the allegationof breach of trust and other offences were really committed by theaccused, at first, the complainant ought to have filed the petitionunder Section 3 of the Charitable and Religious Trusts Act, 1920 orunder Section 92 of Code of Civil Procedure, 1908 for effective andproper administration of trust and removal of trustees. The learnedMagistrate observed that in the complaint, random allegations aremade but no specific incident of cheating has been narrated. Thelearned Magistrate further opined that if the trustees had not actedin a diligent manner, the complainant and witnesses, asbeneficiaries, can compel the trustees to act in the right manner byinvoking Section 61 of the Indian Trusts Act, 1882 for their removal.The learned Magistrate observed that it is admitted that civil casesare pending in this regard between the parties and hence opined thatthe proper forum to set right the thing is a civil Court and that thecriminal Court can do nothing in this aspect. The learned Magistrateon holding that the case is of civil nature involving administrationof immovable trust properties, collection of advance amount, andaccount for it and rights of accused to act as trustees and onobserving that no ingredients are available to constitute a criminaloffence and on opining that the complaint had been filed with motiveto pressurize the accused to vacate the office of trusteeship and onrelying on the judgment reported in 2003(2) CTC 270 and AIR 20012960, dismissed the petition. 9. Aggrieved by the dismissal of his petition, thepetitioner/complainant has preferred the present revision. https://hcservices.ecourts.gov.in/hcservices/

10. The learned counsel for the revision petitioner hascontended in his revision that the learned Magistrate erred inthinking that the witnesses have admitted that the accused was actingas a trustee and failed to note that the election of accused astrustee has already been challenged before the competent authority.It was contended that the learned Magistrate erred in thinking thatonly trustee or managing trustee alone can maintain the complaint andfailed to note that anybody who is eligible to become a trustee underthe trust deed can maintain a criminal complaint. It was contendedthat the learned Magistrate failed to note that for administration ofthe trust already appropriate civil proceedings have been initiatedand for punishment for criminal breach of trust and misappropriation,the remedy is criminal prosecution. It was contended that the trialCourt failed to note that there can be parallel proceedings in civilCourt and criminal Court depending upon the relief sought for. Hence,it was prayed to set-aside the order passed by the trial Court.11. On the side of the respondent, no one appeared eventhough notice was served. Hence, this Court is constrained to passfinal order.12. On considering the facts and circumstances of the caseand on perusing the dismissal order of the learned Magistrate, thisCourt is of the view that civil cases are pending about themisappropriation of funds by the accused and as such, the properforum to set right the thing is a civil Court and that the criminalCourt can do nothing in this aspect. This Court is of the furtherview that the case is of a civil nature involving administration ofimmovable trust properties, collection of advance amount, and accountfor it and rights of accused to act as trustees and there are noingredients available to constitute a criminal offence. Hence, thisCourt does not find any discrepancy in the conclusions arrived at fordismissing the protest petition.13. In the result, the above revision is dismissed.Consequently, the order passed in C.M.P.No.754 of 2005, on the fileof XI Metropolitan Magistrate, Saidapet, Chennai, dated 18.01.2006 isconfirmed. -s/d-Assistant RegistrarTrue CopySub-Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.The XI Metropolitan Magistrate, Saidapet,Chennai.2.-do-Thro'The chief Metropolitan Magistrate,Egmore,Crl.R.C.No.360 of 2006aa04/08/2014