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Selvam v/s M/s. Ratna Leather Co.

    Crl.O.P.No.11150 of 2007 and M.P.No.1 of 2007

    Decided On, 22 July 2009

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE C.S. KARNAN

    For the Petitioner: M/s. M.G. Sankaran, Advocate. For the Respondent: M/s. P. Buvaneswari, Advocate.



Judgment Text

(Prayer: Petition filed under Section 482 Cr.P.C to call for the records of complaint and quash the entire proceedings in C.C.No.114 of 2000 on the file of Judicial Magistrate No.II, Pondicherry as an abuse of process of law.)


The petitioner has filed the above Criminal Original Petition to call for the records in C.C.No.114 of 2000 on the file of Judicial Magistrate No.II, Pondicherry and quash the same.


2. The respondent /complainant filed the case against the petitioner/accused stating that the petitioner herein approached the proprietor/respondent and sought for employment as Manger stating that he had vast experience in the field. The accused was offered appointment as Manager of the company being promoted and he was instructed to take necessary steps to get the provisional registration and to look after other official works also which are normally done by managerial personnel. The accused with ulterior motives had obtained the provisional licence for Rathna Leather Company impersonating himself as the proprietor. The accused obtained the provisional licence on 28.06.1996. When the complainant became aware of the said fact, the accused was confronted but he stated that it was done mistakenly by him for convenience sake to get easily without troubling the proprietor. Thus the accused was required to take necessary steps to get the mistake corrected and accordingly amendments were effected on 06.11.1996 in the provisional licence No.590317648 dated 28.06.1996 changing the name of ownership of M/s. Rathna Leather Co, from P.Selvam to G.Vivekanandan. In the no-objection certificate issued by District Industries Centre, Government of Pondicherry, also such an amendment was carried out on 05.12.1996. The accused himself had taken necessary steps to effect the amendment, subsequently, the certificate of Registration under Central Sales Tax Act and Pondicherry General Sales Tax Act were also issued in the name of G.Vivekanandan only as proprietor of Rathna Leather Co.


3. The complainant submits that only G.Vivekanandan is recognised as proprietor of Rathna Leather Company by the office of the Deputy Director General of Foreign Trade also. Further, since the incorporation of M/s. Rathna Leather Co, only Vivekanandan is operating the bank accounts in his capacity as sole proprietor. He only made necessary application to the Exchange Central Department of Reserve Bank of India for allotment of Exporters Code Number. The accused, apart from obtaining the provisional licence by misrepresenting himself as proprietor was never let to indulge in any act impersonating as proprietor of M/s. Rathna Leather Company. The complainant submits that the accused, who was engaged as Manager of M/s. Rathna Leather Company for some time, discontinued his service, when he was queried about certain irregularities found in the financial affairs and account books of the company and ever since is vindictively trying to disturb the business of the complainant and to malign it before every authority under the Government and before its customers.


4. Further, the accused himself had caused to issue a notice dated 14.04.1997 accepting himself as Manager and Vivekanandan as proprietor of M/s.Rathna Leather Company, but on 05.06.1997 the accused, utilising the letter head paper of the complainant, wrongly and unauthorisedly sent a letter to the Director of Industries, Pondicherry, claiming that his no-objection was obtained for chage of ownership by force and threats and praying not to change the ownership. The accused sent copies of the said letter to 23 persons and offices, including the Assistant Commissioner of Customs (Exports), Air Carriage Complex, Madras-27. Consequently, the duty draw back (incentives given by the Government at 8% during the relevant period) was stopped for three months from June 1997. The complainant was able to get the said amount after a delay of three months, only with much hardship, as the complainant was constrained to go and explain his ownership. During this period, due to such criminal acts of the accused, the name and the business of the complainant got affected. The accused, after being removed from service of M/s.Rathna Leather Company, has no manner of right to utilise the letter head of the said company and has no authority to address anyone impersonating himself as the authorised signatory of M/s.Rathna Leather Company. The accused, by utilising the letter head of the complainant and misrepresenting himself as the authorised signatory had created a false document to address the Director of Industries, Pondicherry on 05.06.1997 with the intention to cause damage to the complainant to part with the property of M/s.Rathna Leather Company and with the intention of committing fraud upon the complainant and put up copies of the said letter dated 05.06.1997 to all the persons in various departments. By the said letter, the accused had also intentionally induced the Madras Customs to omit the act of disbursing the duty drawback due to the complainant, which has caused damage to the complainant, since the money withheld had put the complainant into financial constraints and has also caused hard to the mind, reputation and property of the complainant. Further, the accused by personating himself as authorised signatory of M/s. Rathna Leather Company in the letter dated 05.06.1997 had committed cheating by personation. The accused had written the letter dated 05.06.1997 in order to cheat the complainant with the knowledge that wrongful loss will ensue.


5. It is also alleged by the complainant that the accused by writing the letter dated 05.06.1997 and addressing it to so many persons and authorities had defamed the complainant by imputing dishonest intention and unlawful acts to the complainant and thereby causing harm to the reputation of the complainant which had directly resulted in loss and harm atleast in the instance of the Madras Customs.


6. It is further alleged by the complainant that the accused, after seeing the objection and documents filed by the complainant in O.S.No.933 of 1997 and having found that he had no case, on 05.01.1999, intimidated the manager of the complainant company with injury to his person and has also stated that he is going to give a criminal complaint and to drag the complainant to the criminal courts and to publish it as a news item in order to injure the reputation of the complainant.


7. It is therefore alleged by the complainant that as the accused had committed the offences of cheating, cheating by impersonation, forgery, forgery for the purpose of cheating, and harming reputation and criminal intimidation had made himself liable to be punished under Sections 419, 420, 465, 468, 469 and 506 of IPC. Hence, the complainant has prayed that summons be issued to the accused, try and punish him under Sections 419, 420, 465, 468, 469 and 506 of IPC in the interest of justice.


8. The petitioner has contended in his quash petition that he admits that the respondent has filed the case before the learned Judicial Magistrate, Pondicherry on an alleged offence under Sections 419, 420, 465, 468, 469 and 506 of IPC. The said case was taken on file, but the petitioner has alleged that he was served summons under Section 138 of Negotiable Instruments Act in STC.No.10600 of 1999. Subsequently, the STC.No.10600 of 1999 was converted into C.C.No.114 of 2000 under Sections 419, 465, 468, 469 and 506 of IPC. The petitioner further submits that the said case is in a part heard stage.


9. The petitioner has contended that he is advised to state that complaint was taken on file under Section 138 of Negotiable Instruments Act, after sworn statement, by the learned Judicial Magistrate No.II, Pondicherry and summon was also issued to him for the said offence. Later, the learened Magistrate converted the offence under Sections 467, 468, 469 and 506 of IPC and the case was also numbered as C.C.No.114 of 2000 from STC.No.10600 of 1999 and so the case was wrongly taken on the file under Section 138 of Negotiable Instruments Act.


10. The petitioner is advised to state that the learned trial court has taken cognizance of the case after applying his judicial mind to the facts of the case under Section 138 of Negotiable Instruments Act after the sworn statement of the PW.1. Further, the petitioner has contended that there is a procedural flaw in the act of the learned Magistrate to convert the case as C.C.No.114 of 2000 and to take the case on file under Sections 419, 465, 468, 469 and 506 of IPC. The petitioner is advised to state that once a trial judge, after taking cognizance of the case under Section 138 of Negotiable Instruments Act, reached the post-cognizance stage and issued summons under Section 204 Cr.P.C, the trial judge could not switch back to the pre-cognizance stage and take the case on file under difference offences, for which no further statement or fresh statement of PW.1 was taken by the learned Magistrate. It is further alleged by the petitioner that once the learned Magistrate takes cognizance of the case, then the Magistrate could not review its own order by taking the case on file under Sections 417, 463, 468 and 469 of IPC by converting the case, which procedure is unknown to law.


11. Further, it is contended that the trial court has no right to take the case on file against the accused for the offences already discharged. Hence, the petitioner has filed this petition to quash the petition.


12. The learned counsel for the petitioner, in support of his case has enclosed the following documents. (1) Court summons in STC.No.10600 of 1999, hearing dated 20.03.2000 (2) Docket order dated 16.12.1999, 29.12.1999, 27.01.2000, 28.02.2000, 20.03.2000 24.03.2000 and 27.03.2000.


13. The learned counsel for the petitioner has cited the below mentioned judgments:-


(1) (2006) I SCC (Cri) 460, (Mohammed Yousuf ...vs.. Ataq Jahan and another)


(2) 1993 Law Weekly (Criminal), 557 (Lionel Edmund and six others ...vs... Velmyl Nadar and another)


(3) 1977 Law Weekly (Criminal), 1, Part I, (Devarapalli Lakshminarayan Reddy and others ...vs... V. Narayana Reddy and others).


The citations annexed by the learned counsel for the petitioner is not applicable in the present case.


14. The learned counsels for the petitioner and the respondents argued for their respective parties vehemently.


15. Considering the contentions of the petitioner as well as the respondent and arguments of the learned counsel of both the parties, the Court is of the view that the respondent/complaint filed the case before the learned Magistrate for an alleged offence under Sections 419, 420, 465, 468, 469 and 500 of IPC. Supporting the case, the respondent/complainant has mentioned four witnesses and 13 documents. The learned Magistrate, after considering the case, verification of the documents has issued summons to the petitioner/accused herein as STC.No.10600 of 1999 on an alleged offence under Sections 138 and 142 of Negotiable Instruments Act. The hearing date was mentioned as 20.03.2000. On that day, the complainant and accused were present. The case had been wrongly taken on file under Section 138 of Negotiable Instruments Act. Hence, for consideration on 24.03.2000. Bind over accused.


16. After passing this order on 20.03.2000, the learned Magistrate adjourned the case to 24.03.2000. On 24.03.2000, the complainant present accused present. For consideration on 27.03.2000. Bind over accused.


17. Again, on 27.03.2000, the case came for hearing, when the complainant and accused were present. The case is ordered to be converted as Calender Case and the case

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is taken on file under Sections 419, 465, 468, 469 and 506 of IPC. For examination of the accused call on 18.04.2000. Bind over accused. 18. In the said case, the character of the case has not been changed. Inadvertently the learned Magistrate issued summons to the petitioner/accused as STC.No.10600 of 1999 on an alleged offence under Sections 138 and 142 of Negotiable Instruments Act. If a judicial officer, by mistake, makes an arithmetical error, clerical error, accidental error, incidental error, this can always be corrected by a Criminal Court. There is no prejudice caused to the petitioner/accused, if the error is rectified by the same Magistrate. Further the petitioner and the respondent claim proprietorship over M/s.Rathna Leather Company. So, both parties shall face the trial and establish their respective case before the learned Magistrate. If the said case is tried before the Magistrate, the bonafide person as to the proprietor of the firm and other issues can be decided. In the interest of justice, trial is necessary. Further, this Court directs the learned Magistrate to dispose the case within six months. 19. Hence, the Criminal Original Petition No.11150 of 2007 has got be dismissed and accordingly dismissed. Consequently, connected Miscellaneous Petition is closed.
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