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SAHAYARAJ versus M.RAMANI

High Court of Madras

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Sahayaraj v. M.Ramani - Criminal Revision Petition No.789 of 2005 [2007] RD-TN 835 (6 March 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 06/03/2007

CORAM

THE HONOURABLE MR. JUSTICE P. MURGESEN

Criminal Revision Petition No.789 of 2005

Sahayaraj .. Petitioner

Vs

1.M.Ramani

2.K.K.Shah

3.C.Sivarama Krishnan

4.A.S.Rajagopalan

5.Vasudevan ..Respondents Criminal Revision Case filed under Section 397 & 401 of Cr.P.C. against the order dated 12.10.2004 passed in Crl.M.P.No.753 of 2004 in C.C.No.23 of 2004 by the District Munsif cum Judicial Magistrate, Kodaikkanal, allowing the petition for discharge filed by the accused under Section 204 of Cr.P.C.245(2) of Cr.P.C.

For Petitioner : K.S.Ramachandran

For Respondents : Mr.AR.L.Sundaresan for Ms.A.L.Gandhimathi

:O R D E R



The Revision is directed against the order of the learned District Munsif cum Judicial Magistrate, Kodaikkanal in Crl.M.P.No.753 of 2004 in C.C.No.23 of 2004 dated 12.10.2004.

2.The brief case of the respondents/accused is briefly as follows: a)The respondents herein are the petitioners in Cr.M.P.No.753 of 2004. They have filed a discharge petition under Section 204 r/w 245(2) IPC before the learned District Munsif cum Judicial Magistrate, Kodaikkanal.

b)The Revision Petitioner herein filed a complaint for the alleged non- payment of dues to him by the SIV Industries Ltd. of which the petitioner/1st accused is the Secretary and the petitioners/accused Nos.2 to 4 are the Directors and the 5th accused is the Vice President (Finance) of SIV Industries Ltd., Coimbatore.

c)The complainant has not stated where and when the first accused met him at Kodaikaal and therefore even the very genesis of the complaint is suspected. The fact is that one Moulana Traders were supplying pulp wood to SIV Industries Ltd., and transporting the pulp wood from Kodaikanal and Ooty to the factory of SIV Industries at Sirumugai was being done by one Mohammed Ali of Dindigul. As he could not continue the transport business, Kader Oli of Moulana Traders, by a letter dated 23.8.2001 requested the SIV Industries Ltd., to award the transport contract to the complainant /Revision petitioner. d)Therefore it is clear that the first accused never met the complainant at Kodaikanal and in fact none of the accused have ever met the complainant. Since the alleged meeting of the first accused and the complainant at Kodaikanal has been disproved, the learned Judicial Magistrate Kodaikanal has no jurisdiction to take cognizance of the alleged offence. The complainant did not reveal the date or atleast the month during 2001, when he allegedly met the accused Nos. 1 to 5 at Sirumugai.

e)In and by the letter dated 29.8.2001 of the SIV Industries Ltd., the complainant was permitted to undertake transport of various varieties of pulp wood that were to be supplied by the Moulana Traders. From the said letter, it is evident that the payments would be made as per the actual weight recorded at Sirumugai Factory weigh bridge or any other weigh bridge authorised by the company. It is also evident that the payment would be made at Corporate Office by Account Payee Crossed Cheque after deductions if any. The respondent/ complainant was never assured that payments would be made to him by way of hundies even from the very beginning. Payments to the tune of Rs.19.48 lakhs have been made by way of cheques to the complainant between October 2001 and November 2001. Therefore, the complainant failed to make out even the rudimentary ingredients of Section 420 IPC.

f)The complainant has concealed in the complaint regarding the payments made by the SIV Industries Ltd. Earlier on the basis of the complaint forwarded by the Judicial Magistrate, Kodaikanal to the Kodaikanal Police Station for investigation and report, the Inspector of Police, Kodaikanal Police Station observed

that the SIV Industries is a sick company. The Income Tax Department conducted search in the premises of Kader Oli, Proprietor of Moulana Traders and restrained the SIV Industries from transferring or charging certain properties mentioned in the letter. A sum of Rs.26,56,051/- payable to the complainant has also been indicated in that letter.

g)The complainant filed an application under Section 22(1) of the Sick Industrial Companies Act. The complainant can be treated only as a creditor. Therefore, prayed to recall the process issued against them, discharge them from the case and to dismiss the complaint.

3.In the counter affidavit filed by the respondent/ complainant, it is stated that the claim of the petitioners can be proved only through examination of witnesses. It is true that the transport contract was earlier done by Mohammed Ali of Dindigul and as the payments were not made to him on time, he was not willing to continue with the contract and as he revealed to the accused that he had terminated his relationship with the company as a Transport Contractor. The said Moulana Traders recommended the complainant upon which the first accused approached the said complainant to take up the contract as a switching contractor. The averments in the application that the accused never met the complainant at Kodaikanal , has to be proved. Merely because the complainant did not mention the date of business transaction with the accused, that will not be a ground to discharge. The Hundies were given to the complainant knowing fully well that the company was heading towards bankruptcy. This action would impart on the accused to act with the deliberate intention to cheat the complainant. The accused made certain payments through cheques and for remaining amount, the accused issued Hundies. Since the balance amount of Rs.30,82,288.27 was neither secured by cheques nor by Hundies, the complainant filed an application before the BIFR. Therefore, the complainant's application before the BIFR is for a different amount and the accounts and that the additional documents produced by the complainant will establish the same. The Inspector of Police, Kodaikanal is not the competent person to speak about the legalities of the sickness of the company. The case registered under Crime No.3 of 2004 by the District Crime Branch is not connected with the present complaint. Hence, the complainant preferred a complaint under Section 200 Cr.P.C. Since it is established that the accused have committed offence punishable under sections 406, 407 and 420 IPC, the revision petitioner has prayed for dismissal of Cr.M.P.No.753 of 2004 in C.C.No.23 of 2004.

4.The Point for determination is whether the above Criminal Revision Petition is maintainable ?

5.The respondent/complainant has filed a complaint under Sections 406, 407, 417 and 420 IPC against the petitioners/accused. The first accused is the Secretary of SIV Industries Ltd. The accused Nos.2 to 4 are the Directors and the 5th accused is the Vice President (Finance) of SIV Industreis Ltd., which is a company engaged in the manufacture of Viscose Staple Fibre and Rayon Yarn among others. Pulp Wood of different varieties was one of the raw materials required for the manufacture of Viscose Staple Fibre and Rayon Yarn.

6.According to the complainant, the first accused came to Kodaikanal and requested him to supply the pulp wood from Kodaikanal and Ooty to the factory of SIV Industries at Sirumugai. The petitioners/accused have issued Hundies to the value of Rs.30.82,288.27 and when the Hundies were presented, the same were dishonoured. Hence, the complainant preferred a private complaint. As against the said complaint, the accused/petitioners filed discharge Petition in Cr.M.P.No.753 of 2004 before the District Munsif Cum Judicial Magistrate, Kodaikanal and the learned Judicial Magistrate discharged the accused on 12.10.2004. Challenging the above said order, the complainant preferred the above said Criminal Revision Petition.

7.The senior counsel for the respondents/accused and the counsel for the Revision Petitioner have elaborately argued only on the point dealt with by the learned District Munsif cum Judicial Magistrate, Kodaikkanal in Cr.M.P.No.753 of 2004 that the complainant has filed application only against its Directors and that the Company was not added as an accused.

8.To support his contention, the learned counsel for the Revision Petitioner relied on the case in ANIL HADA Vs. INDIAN ACRYLIC LTD., reported in 2001 SCC (Cri) 174, wherein it was held as follows: "..even in a case where the drawer company is not made an accused but the office-bearers are well within their rights to adduce rebuttal evidence to establish that the company did not issue the cheque towards any antecedent liability. The contention that Section 139 of the Act would afford support to the plea that prosecution of the company is sine qua non for prosecuting its Directors under Section 141 of the Act is not sustainable." Therefore, the learned counsel for the Revision Petitioner/complainant submitted that merely because the Company was not impleaded as an accused, the Directors of the company cannot escape from the liability.

9.On the other hand, the learned Senior Counsel for the respondents/accused contended that there is no averments in the petition about the person who is incharge of the company at that time and that the petitioner/complainant never approached the respondents/ accused for the business transaction.

10.So, the only ground upon which the petition was allowed is that the company was not impleaded as an accused. But the principle laid down in the above said case will furnish the answer and as per the above said decision, eventhough the company was not impleaded as an accused, the Directors of the Company cannot be escaped from the penal liability.

11.The merits of the case cannot be decided at this stage. The learned Senior Counsel also argued about the jurisdiction and the nature of business transaction. Finally he submitted that the respondents/accused may be given liberty to argue before the trial Court, about the genuineness and nature of transaction. They can raise the plea before the trial court as per law.

12.For the reasons stated above, I find that the order of the learned Magistrate is liable to be set aside. Accordingly, the Revision Petition is allowed and the order dated 12.10.2004 passed in Crl.M.P.No.793 of 2004 in C.C.No.23 of 2004 by the District Munsif cum Judicial Magistrate, Kodaikkanal, allowing the petition for discharge filed by the accused under Section 204 of Cr.P.C.245(2) of Cr.P.C. is set aside. To

The District Munsif cum Judicial Magistrate,

Kodaikkanal.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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