Petition sought quashing of criminal charges under Section 482 Cr.P.C. during an ongoing trial. Court held that with the trial in progress, it cannot quash charges based on partial evidence or deny superior inspection to the trial court, dismissing the petition.
Crl.O.P. dismissed; petitioner to argue during trial.
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.09.2016
(Orders reserved on 31.08.2016)
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBBIAH
Crl.O.P.No.9051 of 2016 and Crl.M.P.No.4691 of 2016
R.Marimuthu .. Petitioner
Vs.
State rep. by The Additional Superintendent of Police, SPE/CBI/ACB/Chennai. .. Respondent
Criminal Original Petition filed under Section 482 Cr.P.C. praying to call for the records in C.C.No.8 of 2002 on the file of XI Additional Special Court, CBI cases Court, Chennai and quash the same.
For Petitioner: Mr.K.Kalyanam for Mr.P.Chandrasekar
For Respondent : Mr.B.Mohan, Spl.P.P. for CBI cases
ORDER
The petitioner is A8 in C.C.No.8 of 2002 on the file of XI Additional Special Court, CBI cases Court, Chennai and he has filed this petition to call for the records in the said case and quash the same.
provide housing finance to middle and higher income groups through recognised Housing Finance Companies. NHB would give approval/recognition to a public limited company as Housing Finance Company, if it satisfies the guidelines provided by NHB. Approval should be given to a public limited company formed with the main object of carrying on the business providing long term finance for construction or purchase of houses in India for residential purpose. The public limited company to be approved as Housing Finance Company, should engage only in finance activity. The grant of approval is considered on the basis of the recommendations of the Regulatory Inspection Committee in the Inspection Report and subsequent discussions/clarifications and analysis, if any, required in the process. If a public limited company satisfies the statutory requirements, NHB will approve such companies as Housing Finance Companies (HFC). There are various guidelines for the HFC provided by NHB. If a public limited company is approved by the NHB as HFC, it will be eligible to claim re-finance from NHB in lieu of the loans already given to various customers for construction/purchase of a flat/house. The purpose behind the giving of re-finance is to encourage construction of new houses/flats and extension/upgradation of existing housing stock by persons belonging to low income category by extending need-based housing loans to them. There are various procedures for claiming refinance, the terms and conditions, funds, release, scrutiny and repayment. The petitioner/A8, who is a Chartered Accountant, is the Managing Director of IHFD and A9, who is a close friend of A8, is the Chartered Accountant of IHFD. A8 and others took over a construction firm M/s.Saccraman Engineering Associates Private Limited in 1986 and on 03.12.1986, the name was changed as IHFD Constructions Limited. Though this sister concern was formed by A8 and others, the actual construction of flats/houses was carried out by IHFD Ltd. The RBI, while classifying IHFD as a Housing Finance Company, imposed a condition that IHFD should not indulge in construction activities and it should only be a Finance Company. Therefore, IHFD stopped construction activities and the same was carried out by IHFD Constructions Limited. A8 was the Managing Director for both IHFD and Chairman of IHFD Constructions Limited. The petitioner/A8, in his capacity as Managing Director, applied for approval/recognition of IHFD as Housing Finance Company for claiming re-finance to NHB, Mumbai. When the application for approval of re-finance was pending with NHB, complaints were received in the office of the NHB, Mumbai. The complaints were given by the customers of IHFD with regard to the non-payment of deposits on due dates, delay in handing over possession of flats, delay in sanction and release of loans, unauthorised collection of portion of the proposed loan as deposit, etc. by A8. The complaints establish that everything was not normal in the matter of finance and functioning of IHFD of A8 and that they were not financially sound as projected by them on the basis of manipulated books of accounts. The
investigation further revealed that the officials of NHB ignored the adverse factors against M/s.IHFD before the recognition of the said company as Financial Company. The petitioner/A8, along with other accused persons/officials and employees of M/s.IHFD Limited, Chennai, in the matter of recognition of M/s.IHFD as a Finance Company, to cheat the NHB, by fabricating the records and to use the same as genuine and to commit criminal misconduct and in pursuance of the conspiracy, fraudulently and dishonestly prepared forged loan applications, deed of guarantees, loan agreements, sanction letters, loan documents and salary/income certificates and submitted false claims for re-finance to NHB for the loans that were not disbursed at all by IHFD. They have claimed re-finance on 22 occasions to the tune of Rs.32.43 crores including the ad-hoc loans of Rs.1.50 crores each, which otherwise they are not eligible. Hence, based on the above allegations, the respondent-authority registered case and after investigation, they filed charge-sheet before the Court below, which was taken on file in C.C.No.8 of 2002 and the petitioner/A8 has filed this Crl.O.P. to quash the said criminal proceedings in the said C.C.No.8 of 2002.
7500 borrowers and out of 41 loanees, two are dead and only through 39 loanees, the CBI is sustaining the charges in this case. Learned counsel invited the attention of this Court to the evidence adduced by one K.R.Padmanabhan (P.W.12), who has stated in his evidence that he got a loan of Rs.30,000/- from IHFD for the construction of first floor of his residential house. He has further stated in his evidence that a cheque for a sum of Rs.30,000/- was issued by IHFD in favour of him on 20.11.1990 and thereafter, the Company has sanctioned loan for the construction of the first floor in the residential house. He further stated in his evidence that he has settled the amount to IHFD and got back the documents executed by him from IHFD, and therefore, no amount is due to IHFD. Thus, by relying upon the above said evidence of P.W.12 K.R.Padmanabhan, learned counsel for the petitioner submitted that except the evidence of P.W.12, no other evidence is available as against the petitioner/A8 and no other witness has made a reference about the IHFD. Even P.W.12 has stated that he has repaid the loan amount as noticed above in his evidence.
almost all the witnesses had been examined and the case is under the stage of questioning the accused persons under Section 313 Cr.P.C., and hence, learned Special Public Prosecutor submitted that at this stage, the present Crl.O.P may not be entertained. In this regard, learned Special Public Prosecutor appearing for the respondent/CBI relied on a decision of this Court reported in 2007 (1) LW (Crl) 493 (A.Govindarajan and six others Vs. The Inspector General of Police, W-5 All Women Police Station), in which, a learned single Judge of this Court relied on a decision of the Supreme Court reported in AIR 1973 SC 799 = 1974 L.W. (Crl) 40 S.N. (Amar Chand Vs. Shanti Bose) and submitted that when the trial is in progress, the quash-petition under Section 482 Cr.P.C. could not be entertained. Hence, learned Special Public Prosecutor prayed for dismissal of the Crl.O.P.
also repaid, and hence, there is absolutely no evidence against the petitioner/A8. But, it is the case of the prosecution that the charge against the petitioner is that IHFD got enlisted in NHB by fabricating the documents and violated the rules. Since the matter is pending trial, I am of the opinion that this Court, at this stage, cannot conduct any discussion over the submissions and counter submissions made by the learned counsel for the parties. Similarly, this Court is also of the opinion that when already the trial has commenced, this Court cannot quash the charge based on the evidence available before the Court, by picking up some portion of the evidence available on the file of the trial Court. As to whether there is any legal evidence or not, can be decided only after going through the entire documents marked on either side, which has to be done only before the trial Court.
"6. The Hon'ble Supreme Court of India has held in Amar Chand Vs. Shanti Bose reported in AIR 1973 SC 799 = 1974 L.W. (Crl). 40 S.N., that,
"Where the accused moved the High Court at the time when the trial was almost coming to a close and what remained to be done was the examination of two prosecution and one Court witnesses and the High Court quashed the charge and the entire proceedings on the grounds that the complainant suppressed material facts and that the evidence on record did not establish the alleged offence, the order was liable to be set aside. The proper course at that stage to be adopted by the High Court was to allow the proceedings to go on and to come to its logical conclusion, one way or the other, and decline to interfere with those proceedings. The questions whether there was suppression and whether the evidence established the alleged offence were matters to be considered by the trial Court after an appraisal of the entire evidence."
Sd/-
Asst.Registrar (CS VII )
/true copy/
Sub Asst. Registrar
cs
Copy to
1. The XI Additional Special Judge, CBI cases, Chennai.
2. The Additional Superintendent of Police,
SPE/CBI/ACB/Chennai.
3. The Special Public Prosecutor (CBI Cases),
High Court, Madras.
2 ccs to Mr.P.Chandrasekar, Advocate, sr. 52879
Crl.O.P.No.9051 of 2016
GJ (CO)
kk 1/11
2 issues framed by the court
Whether a Criminal Original Petition under Section 482 Cr.P.C. to quash charges can be entertained when the trial is already in progress.
Whether the High Court can quash charges at an interim stage before the trial court completes its evidence appraisal.
Colour shows how this judgement treated each authority
State of Haryana and others Vs. Bhajan Lal and othersReferred¶24
1992 SCC (Cri) 426 = CDJ 1990 SC 684 · Who else cites this
A.Govindarajan and six others Vs. The Inspector General of Police, W-5 All Women Police StationExplained¶27
2007 (1) LW (Crl) 493
Amar Chand Vs. Shanti BoseExplained¶35
AIR 1973 SC 799 = 1974 L.W. (Crl) 40 S.N. · Who else cites this
1 provisions across 1 enactments
R.Marimuthu
State rep. by The Additional Superintendent of Police, SPE/CBI/ACB/Chennai
R.SUBBIAH
As recorded by the court registry
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