Partly allowed

M/S.Shree Coimbatore Gujarati v. Ashwin C.Thakker

Madras HC14 Sept 2021CRL RC/834/2018

Case brief

AI extract

What is this about?

In a criminal revision, the High Court set aside an order of discharge passed by a Judicial Magistrate who had impermissibly considered documents filed by the accused during the discharge proceedings. The court directed the police to conduct further investigation regarding misappropriation allegations and file a supplementary charge sheet within twelve weeks.

What did the court decide?

The order of discharge was set aside. The matter was remitted to the Judicial Magistrate to restore the discharge petition. The police were directed to complete further investigation within twelve wee

M/S.Shree Coimbatore Gujarati Vs Ashwin C.Thakker — Service and Employment | Madras HC (2021)

¶1

 IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶2

ORDERS RESERVED ONORDERS PRONOUNCED ON
03.09.202114.09.2021

¶3

CORAM

¶4

THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN

¶5

CRL.R.C.NO.834 OF 2018

¶6

M/s. Shree Coimbatore Gujarati Samaj,
662, Mettupalayam Road,
R.S.Puram, Coimbatore - 641 002.
Rep. by its Secretary
Chandrakant Patel.

¶7

.. Petitioner/Complainant

¶8

 .. Vs ..

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1. Ashwin C.Thakker

¶10

2. Prakash M.Majithia

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3. The State by Inspector of Police, District Crime Branch, Coimbatore District.

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.. Respondents

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PRAYER : Criminal Revision Case filed under Section 397 r/w.
401 of the Criminal Procedure Code, against the judgment dated
19.04.2018 passed in Crl.M.P.No.6494 of 2017 in C.C.No.298 of
2016, on the file of the learned Judicial Magistrate No.VI,
Coimbatore, whereby the respondents 1 and 2 herein were
discharged from the case under Section 239 of Cr.P.C.

¶14

For Petitioner: Mr.M.Santhana Raman
 for Mr.M.R.Sivakumar

¶15

For RR-1 & 2: Mr.L.Mouli
For R-3: Mr.R.Vinoth Raja,
 Government Advocate

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https://hcservices.ecourts.gov.in/hcservices/

¶17

ORDER

¶18

 The matter is heard through "Video Conference".

¶19

This Criminal Revision Case is preferred by the
petitioner/complainant against the order dated 19.04.2018 passed
by the learned Judicial Magistrate No.VI, Coimbatore, in
Crl.M.P.No.6494 of 2017 in C.C.No.298 of 2016, whereby the
respondents 1 and 2 herein were discharged from the case under
Section 239 of Cr.P.C.

¶20

2. The respondents 1 and 2 herein were filed a petition
in Crl.M.P.No.6494 of 2017 under Section 239 of Cr.P.C. seeking
to discharge them from the case and the learned Judicial
Magistrate No.VI, Coimbatore, has allowed the said petition and
thereby discharged both the accused 1 and 2/respondents herein.
The same is under challenge by the de facto complainant.

¶21

3. Heard the learned counsel for the petitioner and the
learned counsel appearing for the respondents 1 and 3 as well as
the learned Government Advocate (Crl.Side) appearing for the
third respondent.

¶22

4. Learned counsel for the petitioner has relied on a
decision of the Hon'ble Apex Court reported in (2013) 11 Supreme
Court Cases 476 [Sheoraj Singh Ahlawat and others Vs. State of
Uttar Pradesh and another], wherein, the Hon'ble Apex Court has
held as follows:-

¶23

"While framing charges, court is required to
evaluate materials and documents on record to decide
whether facts emerging therefrom taken at their face
value would disclose existence of ingredients
constituting the alleged offence. At this stage, the
court is not required to go deep into the probative
value of materials on record. It needs to evaluate
whether there is a ground for presuming that accused
had committed offence. But it should not evaluate
sufficiency of evidence to convict accused. Even if
there is a grave suspicion against the accused and it
is not properly explained or court feels that accused
might have committed offence, then framing of charges
against the accused is justified. It is only for

¶24

https://hcservices.ecourts.gov.in/hcservices/

¶25

conviction of accused that materials must indicate
that accused had committed offence but for framing of
charges if materials indicate that accused might have
committed offence, then framing of charge is proper.
Materials brought on by prosecution must be believed
to be true and their probative value cannot be
decided at this stage. The accused entitled to urge
his contentions only on materials submitted by
prosecution. He is not entitled to produce any
material at this stage and the court is not required
to consider any such material, if submitted. Whether
the prima facie case made out depends upon facts and
circumstances of each case. If two views are
possible and materials indicate mere suspicion, not
being grave suspicion, against accused then he may be
discharged. The court has to consider broad
probabilities of case, total effect of evidence and
documents produced before it. The court should not
act as mouthpiece of prosecution and it is
impermissible to have roving enquiry at the state of
framing of charge."

¶26

5. Learned counsel for the petitioner has also relied on
a decision of the Hon'ble Apex Court reported in (2005) 1
Supreme Court Cases 568 [State of Orissa Vs. Debendra Nath
Padhi], wherein, the Hon'ble Apex Court has held as follows:-

¶27

"Trial court whether can consider any material
filed by the accused. At the said stage it can
consider only the material produced by the
prosecution. No provision in Cr.P.C. grants to the
accused any right to file any material or document at
the said stage. That right is granted only at the
stage of trial. Accused cannot at the stage of
framing of charge invoke Section 91 to seek production
of any document to prove his innocence."

¶28

6. Learned counsel appearing for the respondents 1 and 2
relied on a decision of the Hon'ble Apex Court reported in
(2013) 3 Supreme Court Cases 330 [Rajiv Thapar and others Vs.
Madan Lal Kapoor], wherein, the Hon'ble Apex Court has held as
follows:-

¶29

https://hcservices.ecourts.gov.in/hcservices/

¶30

"30. Based on the factors canvassed in the
foregoing paragraphs, we would delineate the
following steps to determine the veracity of a
prayer for quashment, raised by an accused by
invoking the power vested in the High Court under
Section 482 Cr.P.C.:-

¶31

30.1. Step one : whether the material relied
upon by the accused is sound, reasonable, and
indubitable, i.e., the material is of sterling and
impeccable quality?

¶32

30.2. Step two : whether the material relied
upon by the accused would rule out the assertions
contained in the charges levelled against the
accused, i.e., the material is sufficient to reject
and overrule the factual assertions contained in the
complaint, i.e., the material is such as would
persuade a reasonable person to dismiss and condemn
the factual basis of the accusations as false?

¶33

30.3. Step three : whether the material
relied upon by the accused has not been refuted by
the prosecution/complainant; and/or the material is
such that it cannot be justifiably refuted by the
prosecution/complainant?

¶34

30.4. Step four : whether proceeding with
the trial would result in an abuse of process of the
court, and would not serve the ends of justice?

¶35

30.5. If the answer to all the steps is in
the affirmative, judicial conscience of the High
Court should persuade it to quash such criminal
proceedings in exercise of power vested in it under
Section 482 Cr.P.C. Such exercise of power, besides
doing justice to the accused, would save precious
court time, which would otherwise be wasted in
holding such a trial (as well as proceedings arising
therefrom) specially when it is clear that the same
would not conclude in the conviction of the
accused."

¶36

https://hcservices.ecourts.gov.in/hcservices/

¶37

7. The de facto complainant, in his complaint, has stated
that the accused Nos.1 and 2, while acting as a Chairman and
Secretary of the Shree Coimbatore Gujarati Samaj, the Society
Registered under the Tamil Nadu Societies Registration Act, have
manipulated the purchase in favour of the society by the Trust
and misappropriated the funds and hence, he has filed the
complaint.Afterinvestigation,thethird
respondent/Investigating Officer has filed charge sheet. In the
discharge petition, the learned Judicial Magistrate No.VI,
Coimbatore, appears to have taken note of the various documents
filed by the accused in support of the discharge petition and
also called the Investigating Officer as to whether the
Investigating Officer has considered the petitions or the
documents only and whether the Investigating Officer has any
objection to receive the documents. Such procedure adopted by
the learned Magistrate under Section 239 of Cr.P.C. is
unsustainable in law. The learned Magistrate, while trying the
petition for discharge filed under Section 239 of Cr.P.C. in a
calender case, has limit scope in holding the enquiry and also
receiving the documents or cross examining of Investigating
Officer by way of enquiry and hence, the order passed by the
learned Magistrate is not sustainable in law.

¶38

8. The main allegation in the final report is that
without proper sanction and resolution empowering the accused to
purchase the land, they have purchased the property and
misappropriated a huge sum of amount and relied upon the
statement of L.Ws.12 and 13 viz., the vendors in the land in
question.

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9. The learned Magistrate, after taking note of the two
documents filed along with discharge petition (viz., resolution
for purchase of the disputed land and also the subsequent sale
deed executed by the de facto complainant), rendered a finding
that there is no loss to the society.

¶40

10. On a perusal of records, it reveal that the book for
resolution viz., for the year 2006-2014 was produced before the
learned Judicial Magistrate No.VI, to show and demonstrate that
there was a written sanction for the purchase of 89 cents and 1
acre, (the subject matter of the case). Besides regarding
misappropriation, the evidence of L.Ws.12 and 13 is there.
However, it does not disclose the alleged offence by satisfying
the necessary ingredients.

¶41

https://hcservices.ecourts.gov.in/hcservices/

¶42

11. Hence, (a) I find that the Investigating Officer has
not collected the book of resolution for the year 2006-2014
without ascertaining whether there was a resolution or not, it
appears that a final report is filed before the learned Judicial
Magistrate No.VI, as if, there was no prior sanction by way of
resolution to purchase the above said two pieces of lands.

¶43

(b) Secondly, 161 Cr.P.C. statements of L.Ws.12 and 13
and hence, I find that since the order has been passed by
receiving the documents which are said to be in the custody of
the Coimbatore Gujurati Samaj that will throw more light that
the accused have committed the offence or not as projected by
the present Secretary the de facto complainant.

¶44

12. This Court has taken note of the fact that the de
facto complainant after assumption of the charge, these accused
have filed the suit before the Sub Court, Coimbatore,
challenging the election and immediately thereafter, these
present complaint appears to have been filed by the newly
elected Secretary.

¶45

13. Be that as it may, since the written sanction for the
purchase of two pieces of lands by way of resolution is
available in the book of resolution for the year 2006-2014. The
Investigating Officer is hereby required to do the further
investigation by taking note of those facts and after collecting
the information, he is required to file additional final report
as contemplated under Section 173 (8) of Cr.P.C.

¶46

14. In view of the discussion in the preceding paragraph
as to the scope and enquiry and powers of the Judicial
Magistrate under Section 239 Cr.P.C., for discharge, I find that
the order passed by the learned Judicial Magistrate is liable to
be set aside.

¶47

15. In the result,

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[i] This Criminal Revision Case is allowed to the limited
extent that the order of discharge passed by the learned
Judicial Magistrate No.VI, Coimbatore is set aside.

¶49

[ii] The matter is remitted back to the learned Judicial
Magistrate No.VI, Coimbatore.

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https://hcservices.ecourts.gov.in/hcservices/

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[iii] The learned Judicial Magistrate No.VI, Coimbatore,
is hereby required to restore the discharge petition in
Crl.M.P.No.6494 of 2917 on his file.

¶52

[iv] There shall be a further direction to the third
respondent police to take note of the resolution book for the
year 2006-2014 and to file a supplementary charge sheet
depending upon the outcome of the investigation either positive
report or by the negative report, on consideration of entirety
of the circumstances.

¶53

[v] Thereafter, the discharge petition shall be
considered by the learned Judicial Magistrate No.VI, Coimbatore,
after filing of the report in the further investigation as
directed as above.

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[vi] The third respondent police is hereby required to
complete further investigation within a period of twelve weeks
from the date of receipt of a copy of this order.

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Sd/-

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Assistant Registrar(CS-III)

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// True Copy //

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Sub Assistant Registrar

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Jrl

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To

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1. The Judicial Magistrate No.VI, Coimbatore.

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2. The State by Inspector of Police, District Crime Branch, Coimbatore District.

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3. The Public Prosecutor, High Court, Madras.

¶64

+1cc to Mr.M.R.Sivakumar, Advocate, S.R.No.46359
+1cc to Mr.L.Mouli, Advocate, S.R.No.46665

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Crl.R.C.No.834 of 2018

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RSV(CO)

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RLP(01/10/2021)

¶68

https://hcservices.ecourts.gov.in/hcservices/

M/S.Shree Coimbatore Gujarati v. Ashwin C.Thakker

Case brief

What is this about?

What did the court decide?

M/S.Shree Coimbatore Gujarati v. Ashwin C.Thakker

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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