The Court quashed criminal proceedings under Section 482 Cr.P.C. holding that allegations against most petitioners did not disclose a cognizable offence and the long delay without trial constituted abuse of process.
Criminal proceedings in C.C.No.2 of 2008 and connected M.P.s were quashed and closed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 1.07.2011 CORAM:
THE HONOURABLE MR. JUSTICE G.M. AKBAR ALI
Crl.O.P.(MD)No.490 of 2011 and M.P.(MD)Nos.1 and 2 of 2011
1.Arputharaj 2.Mathalai Mary 3.Jayaraj @ Katturaja 4.Rajasekar @ Sekar 5.Peter Francis 6.Innachi 7.Irudhayaraj 8.Louis Mary @ Arokkiammal
... Petitioners/Accused 2 to 9 Vs.
1.State Rep.by The Inspector of Police, Vaiyampatti Police Station, Tiruchirapalli District.
2.Nixon Ignatious Xavier
... Respondents(Complainant and Defacto Complainant)
Prayer: This Criminal Original Petition is filed under Section 482 Cr.P.C., to call for the records in C.C.No.2 of 2008 on the file of the learned Chief Judicial Magistrate, Tiruchirapalli and quash the same as illegal.
For Petitioners : Mr.R.R.Kannan For Respondents : Mrs.S.Devasena for R1 (Govt.Advocate Crl.Side) Mr.S.Deenadhayalan for R2
O R D E R
G.M. AKBAR ALI,J.,
This petition is filed to quash the proceedings in C.C.No.2 of 2008 on the file of the learned Chief Judicial Magistrate, Tiruchirapalli.
2.On a complaint given by the 2nd respondent, the 1st respondent had registered a case in Crime No.64 of 2005 on 21.02.2005 for an alleged offence under Sections 120(b), 420, 427, 452, 468, 502 (ii), 109 IPC r/w Section 3 and 4 of Tamil
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Nadu Prohibition of Charging Exorbitant Interest Act, 2003 (herein after referred as Exorbitant Interest Act). The crux of the complaint is that the de facto complainant obtained a loan of Rs.32,000/- from one Larwance Pitchaimuthu son of Peter Frances (petitioner No.5) and Rs.18,000/- from the 1st petitioner who is the brother of the said Lawarance Pitchaimuthu. It is said that these two persons have been obtaining exorbitant interest at the rate of Rs.4/- per hundred and later increased to Rs.5/- per hundred rupees and he has been initially paying monthly interest and thereafter weekly interest.
3.It is alleged that though he had paid huge amount towards the loan, the said two persons along with the other petitioners who are all the family members threatened to make him to execute a power of attorney and with the aid of such power of attorney they have cheated and grabbed his property worth of Rs.2 lakhs for paltry sum. On such a complaint, an investigation has been conducted and a charge sheet has been filed as early as 05.08.2006 which was taken on file in C.C.No.2 of 2006 on the file of the Chief Judicial Magistrate Tiruchirapalli. The complainant seemed to have filed a Writ petition in the year 2007 to direct the Government to appoint a Special Public Prosecutor which was turned down by an order dated 07.02.2007 in W.P.No.993 of 2007. Meanwhile the petitioners has approached this Court under Section 482 for a speedy disposal which was also considered by this Court. The representation given by the de facto complainant for appointment of Special Prosecutor was turn down by letter dated 12.07.2007. Even before filing of the charge sheet, the said Lawarance Pitchaimuthu expired and the charge sheet was filed only against these petitioners.
i)the entire allegation is only made against the deceased for a loan and demanding of exorbitant interest and the petitioners are only family members who are unnecessarily dragged into the criminal proceedings.
ii)the proceedings are pending from 2006 without any progress and the de facto complainant is not interested in prosecuting the case and only trying to drag on the proceedings and the fundamental rights of the petitioners are affected.
https://hcservices.ecourts.gov.in/hcservices/ 5.Reiterating the above two contentions, Mr.R.R.Kanan, learned counsel for the petitioners submitted that there is no allegations against these petitioners which would constitute various offences in the charge sheet. The learned counsel pointed that the entire allegations are only against the deceased who is alleged to have extended certain loans to the de
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facto complaint. The learned counsel pointed out in spite of obtaining an order form this Court for speedy disposal in the year 2007, the matter has not been disposed and the speedy disposal is the fundamental right to the petitioners.
6.The learned counsel relied on the following case laws:
(K.Krishnasingh Vs. State rep.by its Inspector of Police, Prohibition and Enforcement Wing, Krishnagiri),
2008 11 SCC 670 (Suneet Gupta Vs. Anil Triloknath Sharma),
2009 8 SCC 751 (Mohammed Ibrahim and others Vs. State of Bihar and another)and
2011 1 MLJ 826 (N.R.Ramakoti and another Vs. State rep.by Inspector of Police, Chennai and others) .
7.On the contrary Mr.S.Deenadayalan, learned counsel for the de facto complainant would state that the petitioners along with the deceased were all the family members dealing with loan transactions and they have been demanding exorbitant interest and they have conspired together in order to deceive the de facto complainant had also forged and created fraudulent documents and thereby the complainant has been cheated. The learned counsel pointed out after filing of the charge sheet the court need not to interfere in the criminal proceedings and the trial has to be conducted for its logical conclusion.
8.Heard the learned counsel for the petitioner and the learned Government Advocate (Crl.side) and the learned counsel for the 2nd respondent.
9.In 2008 11 SCC 670 (Suneet Gupta Vs. Anil Triloknath Sharma), the Supreme Court had considered an FIR which involved a civil dispute and has held in para 25 which is as follows: "25.In the case in hand, the High Court was right in coming to the conclusion that a civil dispute – pure and simple – between the parties was sought to be converted into a criminal offence only by resorting to pressure tactics and by taking police help which was indeed abuse of process of law and has been rightly prevented by the High Court."
https://hcservices.ecourts.gov.in/hcservices/ 10.In 2009 8 SCC 751 (Mohammed Ibrahim and others Vs. State of Bihar and another) the Apex Court has considered a criminal proceedings involving an offence for forgery, cheating, insult, wrongful restraint and causing hurt and making false document the Supreme Court has discussed detailed various alleged
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offences and had held in para 8 which is as follows:
"8.This Court has time and again drawn attention to the growing tendency of the complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal Court should ensure that proceedings before it are not use for settling scores or to pressurise parties to settle civil disputes. But at the same time, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes. (See G.Sagar Suri Vs. Sate of U.P.and Indian Oil Corpn. V. NEPC India Ltd.) Let us examine the matter keeping the said principles in mind."
"18.Therefore, before exercising the power under Section 482 Cr.P.C., the Court's duty is to see whether the evidence collected during the investigation satisfies the ingredients of the offence and whether the dispute between the parties constitute only a civil wrong not a criminal wrong."
12.In the instant case, the allegation of the complainant as per his complaint and as well as his statement under Section 161 Cr.P.C. is that he obtained loan only from the deceased Pitchaimuthu and the 1st petitioner and they have been receiving exorbitant interest. He would also alleged that the deceased and the 1st petitioner obtained a power of attorney and he alleges forgery, false and fraudulent document and cheating. However, he would implicate the other petitioners and as if they have also joined with the deceased in threatening and receiving exorbitant interest.
13.The entire allegations even taken as face value to be correct discloses no cognizable offence against the petitioners 2 to 8 who are the family members. As far as the 1st petitioner is concerned there is a specific allegation that he had advanced loan and has been demanding exorbitant interest. The alleged transaction is of the year 2001 for a um of Rs.50,000/- the complaint is given in the year 2005 and the charge sheet is filed in the year 2006. There is an order of this Court to conduct trial in day today basis and we are in 2011 and there is https://hcservices.ecourts.gov.in/hcservices/ no progress in the trial.
of Jammu and Kashmir,the Supreme Court has held as follows:
49.It is the bounden duty of the court and the
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prosecution to prevent unreasonable delay.
50.The purpose of right to a speedy trial is intended to avoid oppression and prevent delay by imposing on the Courts and on the prosecution an obligation to proceed with reasonable dispatch.
51.In order to make the administration of criminal justice effective, vibrant and meaningful, the Union of India, the State Governments, and all concerned authorities must take necessary steps immediately so that the important constitutional right of the accused of a speedy trial does not remain only on papers or is a mere formality.
52.I the instant case not a single witness has been examined by the prosecution in the last twenty six years without there being any lapse on behalf of the appellant. Permitting the State to continue with the prosecution and trial any further would be total abuse of the process of law. Consequently, the Criminal proceedings are quashed."
15.Following the above principal this Court in 2007(1) MWN Crl.60 had quashed the proceeding in PRC No.16 of 2000. Therefore, pendency of the criminal proceedings in C.C.2 of 2008 is abuse of process of law and liable to be quashed.
16.In the result, the petition is allowed and the criminal proceedings in C.C.No.2 of 2008 on the file of the learned Chief Judicial Magistrate, Tiruchirapalli is quashed. Consequently, connected M.Ps.are closed.
Sd/-
Assistant Registrar(C.O)
/True Copy/
Sub-Assistant Registrar
To
+One CC to Mr.R.R.Kannan, Advocate, SR.No.21265
https://hcservices.ecourts.gov.in/hcservices/ nbj rl/5c – 2.11.2011
Predelivery order made in Crl.O.P.(MD)No.490 of 2011 1.07.2011
2 issues framed by the court
Whether criminal proceedings should be quashed when allegations against some petitioners relate to a deceased and do not constitute a cognizable offence.
Whether excessive pendency of criminal proceedings without prosecution action amounts to abuse of the process of law warranting quashal.
Colour shows how this judgement treated each authority
Suneet Gupta Vs. Anil Triloknath SharmaReferred¶33
2008 11 SCC 670 · Who else cites this
Mohammed Ibrahim and others Vs. State of Bihar and anotherReferred¶35
2009 8 SCC 751 · Who else cites this
N.R.Ramakoti and another Vs. State rep.by Inspector of Police, Chennai and othersReferred¶37
2011 1 MLJ 826
Moti Lal Saraf Vs. State of Jammu and KashmirDistinguished¶42
2006(4) CCR 141
不明的 Case NameFollowed¶49
2007(1) MWN Crl.60
1 provisions across 1 enactments
Arputharaj
Mathalai Mary
Jayaraj @ Katturaja
Rajasekar @ Sekar
Peter Francis
Innachi
G.M. Akbar Ali
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
