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IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.VELMURUGAN, J.
A.Saranya D/o.Anna Durai - Appellant
Versus
State Rep by Deputy Superintend of Police, Economic Offences Wing II, Coimbatore District - Respondent
Crl.R.C.No.1190 of 2020 and Crl.M.P.No.8247 of 2020
Decided On : 20-01-2021
Criminal Procedure Code, 1973 - Section 397 r/w 401, 161 and 173(ii) - Indian Penal Code, 1860 - Sections 120(b), 420, 468, 469, 471, 473 - Tamil Nadu Protection of interests of Depositors Act 1997 - Section 5 - Framing f charges - Criminal Revision - Criminal Conspiracy and cheating - Fake tender order - Allegation of defacto complainant is that all accused joint together and canvassed public to deposit their money into A1 company by assuring to give interest rate up to 10% per month and promised to return their principal amount within 11 months. All accused having criminally conspired and prepared fake tender order copies of reputed Central Government organization of NLC, and also prepared fake rubber stamp, round seal, logo of BHEL and NLC by using fake items they prepared fake tender order copies for cheating general public to believing them as A1 is a pharmacy establishment which supplied huge medicine to Central Government Organization and enabled to give enhanced interest to depositors - Held, It is well settled proposition of law at time of deciding petition under Section 239 of Cr.P.C., Court has to see final report filed by respondent police and documents annexed therein. This Court need not consider the defense taken by accused and documents produced by accused. If Court finds from final report filed by prosecution agency if prima facie incriminating materials against accused, Court can frame charge in this case also reading of final report filed by prosecution agency under Section 173(ii) of Cr.P.C. prima facie material available against petitioner. Prosecution agency has not filed the charge sheet against petitioner, because, she is sister of second accused and she is also one of Directors of the company and signatory in cheques and promissory note created infavour of depositors, therefore contention raised by the petitioner counsel is not acceptable - No merits - Criminal Revision dismissed
Key Points: - The court states that for a petition under Section 239 Cr.P.C., it must consider the final report filed by police and the attached documents; if prima facie incriminating materials exist, charges can be framed; defense evidence is not the initial focus. (!) - The Special Court’s discharge order was challenged; the revision court held that prima facie materials exist against the petitioner to proceed with framing charges and hence the discharge was not merited. (!) - The respondent’s final report indicates the first accused is the company, the next four are directors, and the petitioner (A5) is connected as sister of the second accused; the court found prima facie materials against A5 to proceed, justifying denial of discharge. (!) - The case involves offences under IPC Sections 120(b), 420, 468, 469, 471, 473 and TNPID Act Section 5; the court references reading final report under Section 173(ii) Cr.P.C. to determine prima facie materials. (!) - The revision was dismissed and the connected miscellaneous petition closed. (!)
ORDER :
1. This Criminal Revision case has been filed under Section 397 r/w 401 of Cr.P.C. to set aside the order passed in C.M.P.No.2358 of 2019 in C.C.No.2 of 2018 dated 13.12.2019, on the file of the Special Judge, Special Court under Tamil Nadu Protection of Interests of Depositors Act, Cases, Coimbatore and acquit the petitioner/accused-5 from all charges framed against her.
2.The respondent police registered a case in Crime No.06 of 2016 against the petitioner and four others for the offences punishable under Sections 120(b), 420, 468, 469, 471, 473 of IPC & Section 5 of Tamil Nadu Protection of interests of Depositors Act 1997 (TNPID Act). After completing the investigation, laid a charge sheet before the Special Court, the Special Court has taken the charge sheet on file in C.C.No.2 of 2018. During the pendency of the case, the petitioner had filed a petition before the Special Court under Section 239 of Cr.P.C. to discharge of petitioner/Accused No.5 from the case. The said petition was taken on file by the Special Court in C.M.P.No.2358 of 2019 in C.C.No.2 of 2018. The learned Special Judge after hearing the arguments advanced by the learned counsel on either side, dismissed the petition on the ground that there is a prima facie materials made out against the petitioner/5th accused. Challenging the said order, the petitioner has filed the present revision before this Court.
3.The learned counsel for the petitioner would submit that the first accused A1 is the company and 2 to 4 are the Directors of the company. The second accused is brother, third accused is the father and fourth accused is brother's wife of the petitioner. The petitioner is shown as A5 and he is no way connected with the case. The respondent police filed a final report and it is stated that the cheque was issued by the company/A1, its directors signed in the cheques and the petitioner is not the director of the said company, she is not a party to any agreement made by the accused 2 to 4 with depositors and the petitioner was not a signatory in any one of the documents which were referred to in the final report. Since the petitioner, being the sister of the second accused, has been falsely implicated in this case. This petitioner married in the year 2012 itself and she is residing with her husband as a result of which the case was registered against the family members of the petitioner. There is no materials against the petitioner and the other accused persons have only invited the depositors and the depositors made the deposit. The petitioner is no way connected with the deposit or any other transaction. None of the witnesses have been examined by the prosecution under Section 161 of Cr.P.C for mentioning about the terms and conditions of the agreement and period of agreement and there is no whisper in the entire materials except the charge sheet filed by the respondent police and the entire report has been filed under Section 173(ii) of Cr.P.C. There is no ground to presume the case against the petitioner.
4.The learned counsel for the petitioner vehemently contented that the Special Court failed to see the final report filed by the respondent police. As per the final report the first accused is the company, 2 to 4 accused are the directors and also submitted that the agreement was entered into between the directors and the depositors, and not to the petitioner. Even, as per the final report, cheques were issued by the company and its directors and not by the petitioner herein. In this case either the company or the directors repaid the money to the depositors and as such they are only liable to be prosecuted and the directors who were participated in the day to day affairs of the company, whereas this petitioner is neither a director nor a party to any one of the agreement with depositors. Since, the petitioner is only the sister of the second accused, she was falsely implicated in this case and there is no material to show that she has involved in an
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