w w w . L a w y e r S e r v i c e s . i n



Sree Bargav Finance and Investments rep by its Managing Partner v/s The Inspector of Police

    Crl.A.No.1451 of 2002 and Crl.M.P. Nos.10755 & 11665 of 2002

    Decided On, 30 October 2008

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE A.C. ARUMUGAPERUMAL ADITYAN

    For the Appellant: C. Chinnavyran, Advocate. For the Respondent: J.C. Durai Raj, Government Advocate (Crl.Side).



Judgment Text

(Prayer :- This appeal has been preferred under 11 of the Tamil Nadu Protection of Interest of Depositors (in Financial establishments) Act, 1997 (Act XLIV of 1997) r/w Section 382 of Cr.P.C., against the order dated 26.09.2002 in Crl.M.P.No.1038 of 2002 in C.C.No.5 of 1996 on the file of the Special Judge, Chennai, under TNPID Act, 1997).


This appeal has been preferred against the order in Crl.M.P.No.1038 of 2002 in C.C.No.5 of 1999 on the file of the X Special Judge under TNPID Act, 1997.


2. Crl.M.P.No.1038 of 2002 in C.C.No.5 of 1999 was filed by the accused in C.C.No.5 of 1999, who is the appellant herein seeking the indulgence of the trial Court to order re-investigation under Section 173(8) of the Cr.P.C., which runs as follows:-


"Report of police officer on completion of investigation:-


(1)Every investigation under this Chapter shall be completed without unnecessary delay.


(2).......


(3).......


(4).......


(5).......


(6)......


(7).......


(8)Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-section (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2)."


The purpose for which the said application was filed under Section 173(8) of the Cr.P.C., was that the first Investigating Officer had collected deposit receipts from the depositors and attached only 10% of the properties of the accused / appellant herein and the balance of 90% of the properties was under the control of P.W.81 and if that particulars were discovered by the Investigating Officer then that will be helpful to his depositors / complainants. At paragraph 2 to the said petition the appellant herein / petitioner would state that the petitioner institution through Triveni constructions constructed 16 flats 800 Sq.ft each at the cost of Rs.600/- per sq.ft at Chakrapani Nagar, Valasarawalkam, Madras and P.W.81, along with his son P.W.83, is retaining the documents and preventing the institution from collecting monthly instalments from flat owners, and that P.W.81 ? A.M.Srinivasan forcibly extracted 4 registered sale deeds for lands only without making any payment to the petitioner and these four properties along with superstructure worth Rs.68,00,000/- and that the petitioner / appellant herein, financial institution, is having negative right for telegu version of Tamil Film 'Pagaivan' by paying Rs.11,00,000/- to producer Mr.Sundar, and that P.w.32 ? Mrs.Rajalakshmi fradulently caused transfer of land of 5 ? grounds of land when the petitioner was in hospital and the said property is worth Rs.12,00,000/- and that the petitioner had constructed 5 independent houses at Chakarapani Nagar and balance due amount to be collected from purchasers. According to the petitioner, the above said 5 items of properties are his assets. But regarding those properties no investigation was done by the Investigating Officer and if re-investigation is ordered under Section 173(8) of the Cr.P.c., then it will be known that the above said properties belong to the complainant and the same can also be attached by the Government and the sale proceeds of those properties can also be distributed to his depositors, who have preferred the complainant against him.


3. But before the trial Court the petitioner has not adduced any documentary evidence to show that the above said properties belong to him. For the same purpose there is also another application by the appellant viz. Crl.M.P.No.11665 of 2002 filed before this Court. Crl.M.P.No.11665 of 2002 has been field by the same petitioner / accused under Section 482 of Cr.P.C., scheduling the above mentioned properties and other properties claiming that those properties schedule to Crl.M.P.No.11665 of 2002 also belong to the petitioner-institution. The relief sought for in the said application is that to give direction to the Investigating Officer to make a request to the Government of Tamil Nadu, Home (Court II-A) Department, in continuation of its order of interim attachment dated 11.11.1998 in G.O.Ms.No.1541, to issue further order of attachment of the schedule Serial No.II item 5 to 12 and Serial No.III item 4 to 27 and to enable the Special Court under TNPID Act 1997 at Madras in O.A.No.2 of 1999 to confirm the interim attachment under the provisions of TNPID Act 1997 and to sell the same for the benefit of the depositors and institution.


4. The learned counsel for the appellant would admit that against the order passed in O.A.No.2 of 1999 he has preferred an appeal and the same is pending in C.M.A.No.1281 of 2004. Under such circumstances, no order need be given to the Special Court under TNPID Act, 1997, in whose file as on date O.A.No.2 of 1999 is not pending but the same has already been disposed of and an appeal in C.M.A.No.1281 of 2004 is pending before this Court. The properties mentioned in Crl.M.P.No.1038 of 2002 in C.C.No.5 of 1999 are also scheduled to the properties in Crl.M.P.No.11665 of 2002. But there is no material produced either before the trial Court or before this Court to show that the appellant / petitioner / accused is the owner of the properties mentioned at paragraph 2 of Crl.M.P.No.1038 of 2002. The learned counsel for the appellant would state that the relevant registered documents pertaining to the properties mentioned at paragraph 2 of Crl.M.P.No.1038 of 2002 and also the properties mentioned in Crl.M.P.No.11665 of 2002 have been forcibly taken away from him by P.W.81 and his son P.W.83. If it so, there is no difficulty for the appellant / petitioner / accused to get the registration copy for those documents, since they are all public documents, from the concerned Sub-Registrar's Officer and to produce the same before the Court to enable the Court to proceed against those properties also in order to discharge the liabilities of the accused towards the depositors, who are the complainants in C.C.No.5 of 1999. Without any material, re-investigation under Section 173(8) of Cr.P.C., cannot be ordered as prayed for in Crl.M.P.No.1038 of 2002. Even without re-investigation in respect of the properties mentioned in Crl.M.P.No.1038 of 2002 on the file of the trial Court as well as in Crl.M.P.No.11665 of 2002 before this Court, the learned counsel very well can produce the same before the trial Court at the time when an opportunity is given to him for adducing his evidence. Under such circumstances, I do not find any reason to interfere with the well considered order of the learned trial Judge in Crl.M.P.No.1038 of 2002 in C.C.No.5 of 1999 on the file of the Special Judge, Chennai, under TNPID Act, 1997.


5. In fine, the appeal is dismissed confirming the judgment in Crl.M.P.No.1038 of 2002 in C.C.No.5 of 1999 on the file of the Special Judge, Chennai, under TNPID Act, 1997. Connected Crl.M.P.No.11665 & 10755 of 2002 are also dismissed. Stay is vacated. The appellant is given liberty to produce all the relevant documents pertaining to the properties referred to in Crl.M.P.No.1038 of 2002 on the file of the trial Court as well as in Crl.M.P.No.11665 of 2002 on the file of this Court, before the trial Court at the time he was called upon to let in defence evidence by the learned trial Judge. It is pertinent to note that C.C.No.5 of 1999 on the file of the Special Judge under TNPID Act, 1997, is pending as part heard for the past six years. The learned trial Judge is directed to expedite the trial in C.C.No.5 of 1999 and dispose of the same within tw

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o months from the date of receipt of copy of this order. At this juncture, the learned counsel for the appellant would represent that C.C.No.5 of 1999 had reached the argument stage. If the appellant / petitioner / accused approaches the trial Court with an application for permitting him to let in defence witness, the same shall be entertained by the learned trail Judge and after giving an opportunity to the accused to let in evidence, dispose of the same within the stipulated time. Further it is clarified that if any documents pertaining to the properties mentioned in Crl.M.P.No.1038 of 2002 on the file of the Trial Court and Crl.M.P.No.11665 of 2002 on the file of this Court, is produced by the accused the learned trial Judge can take action against those properties, if it is proved that those properties belong to the accused and proceed against those properties also in accordance with law.
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