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2018 Supreme(Mad) 3585
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
N. ANAND VENKATESH, J.
A. RAJENDRA - Appellant
Versus
STATE - Respondent
Criminal Original Petition No. 6798, 6998, 8533, 12741 of 2018; Criminal Miscellaneous Petition No. 3318, 3319, 3823, 3824, 5825, 5826 of 2018
Decided on : 08-10-2018
Advocate Appeared:
Mohan, Adv., R. Diwakaran, Adv., M. Chandrasekaran, Adv., S. Palanivelayudham, Adv., T.S.R. Venkatramana, Adv.
Headnote:
Code Of Criminal Procedure - Section 204 – Section 200 - Section 190(1)(b) - Section 190 (1) (a) - Section 190 (1) (c) - Section 203 - Section 202 - Section 482 - Indian Penal Code, 1860 - Section 420 - Section 120(b),423, 467, 468, 406, 471 and 506(i) – Contract – Terminating Contract - Claiming Mobilisation Charges - Petitioners herein are company and its Directors - Second respondent company undertakes dredging works - Second respondent entered into a contract with petitioner company, whereby a work order was granted in favour of second respondent towards dredging work at Port Trust - This contract was entered into between parties - Petitioner company was not satisfied with work carried out by second respondent therefore, notice was issued terminating contract - Second respondent initiated arbitration proceedings against petitioner company and its Directors and same is pending - In meantime, a complaint was given by second respondent against petitioners before Superintendent of Police, on allegations that second respondent had certified invoice for claiming mobilisation charges for a sum of Rupees Seven Crores and out of same second respondent was made to send Rupees Six Crores to A-2 and this amount was not repaid by A-2 - Further allegations that was made in complaint is that total amount paid and credited to second respondent company was shown as Rs. 72,09,159/- and total TDS amount paid to IT department was shown as Rs. 72,091.59 - This TDS deduction was made even without paying amount to second respondent – Held, Order taking cognizance of private complaint, ought to have reflected application of mind of Court below, in considering closure report, which is already available before Court - There is absolutely no reference to closure report in order taking cognizance of private complaint by Court below - Court below must have also taken into consideration fact that second respondent was repeatedly attempting to improve his case at every stage and Court below did not take this important aspect into consideration - Court below also did not take into consideration fact that dispute between parties is already pending before Arbitrator - Most important factor, which Court below did not take into consideration is that entire dispute is purely civil in nature and second respondent instead of pursuing remedy before civil forum has attempted to give dispute a criminal colour and has managed to keep criminal case pending for last four years - Not once, but twice Police have thoroughly investigated this case and have filed closure reports - Therefore, some credence must be given for these closure reports and Court below cannot completely disregard these closure reports and take cognizance of private complaint independently - Materials available on record does not make any offence under Section 120(b), 420, 423, 467, 468, 406, 471 and 506(i) of IPC - Court below has mechanically passed an order taking cognizance of private complaint by completely disregarding closure reports filed by Police - That apart, continuance of criminal proceedings against petitioners is a clear abuse of process of Court and interest of justice requires entire proceedings to be quashed – Petition Allowed.
N.ANAND VENKATESH, J.
1. These petitions have been filed by A-1, A-3 and A-2 respectively, seeking to quash the order dated 16.12.2017, wherein the Court below has taken cognizance of the protest petition filed by the second respondent and converted it into a private complaint and issued summons to the petitioners under Section 204 of CrPC.
2. The brief facts that are necessary to decide these petitions are as follows:
2.1. The petitioners herein are the company and its Directors. The second respondent company undertakes dredging works. The second respondent entered into a contract with the petitioner company, whereby a work order was granted in favour of the second respondent towards dredging work at Vishagapattinam Port Trust. This contract was entered into between the parties on 18.05.2013. The petitioner company was not satisfied with the work carried out by the second respondent therefore, notice was issued on 03.03.2014, terminating the contract. The second respondent initiated arbitration proceedings against the petitioner company and its Directors on 24.04.2014 and the same is pending.
2.2. In the meantime, a complaint was given by the second respondent against the petitioners before the Superintendent of Police, Thoothukudi on the allegations that the second respondent had certified invoice for claiming mobilisation charges for a sum of Rupees Seven Crores and out of the same the second respondent was made to send Rupees Six Crores to A-2 and this amount was not repaid by A-2. The further allegations that was made in the complaint is that the total amount paid and credited to the second respondent company was shown as Rs. 72,09,159/- and total TDS amount paid to IT department was shown as Rs. 72,091.59. This TDS deduction was made even without paying the amount to the second respondent.
2.3. It is to be noted here, that this allegation made in the complaint runs contrary to the stand taken in the reply notice dated 18.02.2014 given by the second respondent wherein, the second respondent does not talk about the said amount and only claims for the amounts due to them pursuant to the work carried out by the second respondent.
2.4. The complaint given to the Superintendent of Police, Thoothukudi was forwarded to the Inspector of Police, District Crime Branch, Thoothukudi and an FIR came to be registered in Crime No.59 of 2014 against the petitioners for an offence under Section 420 of IPC. The District Crime Branch, investigated the case in detail and filed a closure report on 07.11.2015, on the ground that the entire case is civil in nature and the dispute between the parties is pending before a civil forum
2.5. The second respondent filed a protest petition before the Judicial Magistrate -I, Thoothukudi. The Judicial Magistrate after considering the entire facts and circumstances of the case dismissed the protest petition filed by the second respondent in CrlMP No.151 of 2016, by an order dated 23.03.2016.
2.6. The second respondent filed CrlOP(MD)No.6413 of 2016 before this Court seeking for change of investigation. The second respondent also filed CrlOP(MD)No.19645 of 2016, before this Court challenging the dismissal of the protest petition filed before the Court below. This Court took all the petitions and heard altogether. This Court by an order dated 06.03.2017 set aside the order passed by the Court below in the protest petition and remanded the matter back to the Judicial Magistrate -I, Thoothukudi for afresh disposal on the closure report. This Court also directed the Court below to nominate any other Police Officer, in case further investigation is ordered.
2.7. Pursuant to the orders passed by this Court, the learned Judicial Magistrate -I, Thoothukudi by an order dated 18.04.2017, ordered further investigation in Crime No.59 of 2015 and directed the Superintendent of Police, Thoothukudi to nominate an Investigating Officer. The Superintendent of Police, Thoothukudi, nominated the Deputy Superintendent of Polic
