Nellai Motor Vehicle Agency, Rep. by its Partner, Mr.Subramanyan v. Selvin Joel

1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED: 21.12.2012CORAM:THE HONOURABLE MR.JUSTICE T.SUDANTHIRAMCrl.O.P(MD)No.16448 of 2011andM.P(MD)Nos.1 and 2 of 2011andM.P(MD)No.2 of 20121.Nellai Motor Vehicle Agency, Rep. by its Partner, Mr.Subramanyan2.Mr.Subramanyan ... Petitioners Vs.Selvin Joel ... RespondentPrayer: Petition filed under Section 482 of the Code of CriminalProcedure, praying to call for the records from the lower Court inC.C.No.342 of 2011 on the file of the Judicial Magistrate No.I,Tirunelveli, Tirunelveli District and to quash the same. For Petitioner : Mr.V.Kathirvelu, Senior Counsel for Mr.S.RagaventhreFor Respondent : Mr.N.S.Ponniah ORDERThe petitioners have filed this petition to quash the proceedingsin C.C.No.342 of 2011 on the file of the Judicial Magistrate No.I,Tirunelveli, Tirunelveli District.

This Criminal Original Petition was heard by this Court on13.12.2012 and on hearing the learned counsel for both the parties, this Court orally dictated the order. But when the draft order was placedbefore me, on perusing the records, I noticed from the typed set ofpapers filed by the petitioners that the respondent herein in an earlierpoint of time, filed a private complaint against the petitioners andseven other accused in Cr.M.P.No.1287 of 2007 before the Chief JudicialMagistrate, Tirunelveli and the said complaint had been dismissed by thelearned Magistrate on 08.02.2008. Challenging the said order of thelearned Magistrate, the respondent herein preferred a revision before the Sessions Court Crl.R.C.No.14 of 2008 and the learned Additional SessionsJudge, Fast Track Court No.I, Tirunelveli, dismissed the revision. Onseeing the copies of those records, I tried to verify the presentcomplaint filed by the respondent herein in C.C.No.342 of 2011. https://hcservices.ecourts.gov.in/hcservices/ 2On noticing the non-mentioning about the filing of the earlier privatecomplaint and about its dismissal and also about the revision beingpreferred and on verifying the fact that the facts stated in both thecomplaints are one and the same, I posted this matter today again forfurther hearing.

When the learned counsel for the respondent herein was asked toexplain, the learned counsel for the respondent admitted the fact ofearlier complaint filed by the respondent herein. But he was not in aposition to explain about the failure to mention those facts in thecomplaint. The learned counsel for the respondent only drew theattention of this Court to paragraph No.10 of the complaint, wherein ithas been mentioned as follows: "10. Since the year 2007 till 2011, the complainant hadtaken much efforts to prosecute the accused first throughpolice then in the Honourable High Court by way of directionpetition, but all went in vain. Hence, the present complaintsubmitted before the Honourable Court. "

The learned counsel for the respondent reiterated by saying thatomission to mention specifically about the revision being preferred bythe respondent herein, is not intentional one. Thereafter, the learnedcounsel for the respondent herein further submitted that the secondcomplaint by the respondent herein against the petitioners herein ismaintainable and further submitted that the first complaint was filed notonly against the petitioners herein, but also against the other accused. The learned counsel relied on a decision of the Honourable Supreme Courtin Pramatha Nath Talukdar and another vs. Saroj Ranjan Sarkar reportedin AIR 1962 Supreme Court 876 (V 49 C 121) and submitted that there is nobar for filing the second complaint.

The learned Senior Counsel for the petitioners submittedadmitting that earlier he advanced the arguments only on the basis ofallegations made in the complaint, but in the memorandum of grounds ofquash petition, it was clearly mentioned about the filing of thecomplaint preferred by the respondent for the same set of facts and alsoabout its dismissal and also about the revision preferred before the Sessions Court by the respondent herein.

This Court considered the submissions and once again perused therecords.

Of course, in paragraph No.3 of the petition filed by thepetitioners herein, it is mentioned about the earlier complaint beinggiven by the respondent herein against the petitioners and about thedismissal of the said complaint in Cr.M.P.1287 of 2007and the further revision being preferred by the respondent to the Sessions Court in Crl.R.C.No.14 of 2008 and also about its dismissal. Itis also mentioned by the petitioners herein that the respondent hereinsuppressing the earlier complaint being filed and its dismissal, filedthe present complaint.

From what is stated in Paragraph No.10 of the complaint, it isnot possible for this Court to say that the complainant/respondent hereinhas disclosed the fact of filing earlier complaint and about itsdismissal. The contention of the learned counsel for the respondent that https://hcservices.ecourts.gov.in/hcservices/ 3it was only an omission, cannot be accepted. It appears to be adeliberate omission.

Now, it is to be considered that whether the second complaintfiled by the respondent herein against the petitioner herein ismaintainable or not. Even in the first complaint filed by the respondentherein against the petitioner, who was shown as a first accused, theallegations are with regard to the fact that in the business dealings theamount deposited by the respondent herein before the petitioner had beenmisappropriated and loss had been caused to the respondent. Theallegations made against the petitioner herein by the respondent in boththe complaints, are one and the same and it is also not disputed by thelearned counsel for the respondent.

The decision of the Honourable Supreme Court relied on by thelearned counsel for the respondent herein, does not help him. On theother hand, it is very much supportive to the petitioner. In thedecision cited above(Pramatha Nath Talukdar's case), in paragraph No.48,it is held as follows: " 48. Under the Code of Criminal Procedure the subject ofthe "complaints to the magistrates" is dealt with in ChapterXVI of the Code of Criminal Procedure. The provisions relevantfor the purpose of this case are Ss.200, 202 and 203. Section200 deals with examination of complaints and Ss.202, 203 and204 with the powers of the Magistrate in regard to thedismissal of complaint or the issuing of process. The scope andextent of Ss.202 and 203 were laid down in 1961(1) SCR: 1 at PP910:(AIR 1960 SC 1113 at pp. 1016-1017). The scope of enquiryunder S. 202 is limited to finding out the truth or otherwiseof the complaint in order to determined whether process shouldissue or not and S. 203 lays down what materials are to beconsidered for the purpose.

The learned Additional Sessions Judge, Fast Track Court No.I,Tirunelveli passed an order in Crl.R.C.No.14 of 2008 confirming thedismissal order passed by the learned Chief Judicial Magistrate, wherein, it is observed that the transaction which took place among thepetitioners and the respondent herein is only business transaction andthe dispute arose among them is only civil dispute. While so, applyingthe ratio laid down by the Honourable Apex Court (decision cited supra),the second fresh complaint cannot be entertained since there is nomanifest error or manifest miscarriage of justice in the previous orderand no fresh evidence is forthcoming.