@JUDGMENTTAG-ORDER
M. Venugopal, J.@mdashThe Revision Petitioners/Accused have projected the instant Criminal Revision Petition as against the order dated 14.12.2007 in Cr. M.P. No. 2611 of 2006 passed by the Learned Special Judge under the Tamil Nadu Protection of Interests of Depositors (In Financial Establishments) Act, 1997. The Learned Special Judge under the Tamil Nadu Protection of Interests of Depositors (In Financial Establishments) Act, 1997, Chennai, while passing the orders in Cr. M.P. No. 2611 of 2006 dated 14.12.2007 has among other things observed that "... on a perusal of the entire material available in this case produced by the respondent Police, there is a prima facie case and sufficient ground for further proceedings against the Accused for the alleged offence u/s 5 of the TNPID Act, etc.," and resultantly, dismissed the petition.
2. According to the Learned counsel for the petitioners/A.2 to A.6, the case of the prosecution is that the First Accused is a Financial Establishment and the Second Accused is the Proprietor of the said Financial Establishment and the Fifth Accused is the wife of the Second Accused. Further, the petitioners/accused and other Accused are the Brother, Brother''s wife and Son-in-Law of the Second Accused.
3. The Learned counsel for the petitioners/accused urges before this Court that the Petitioners have canvassed deposits from the Depositors (public) for the Financial Establishment viz., "Lakshmi Traders and Finance" by promising to pay a higher interest and further allegation is that by the act of canvassing, they have made deposits in the First Accused/Establishment, which amounts to the commission of the offences alleged.
4. The stand of the Petitioners is that the major offence levelled against them is that as per Section 5 of the Tamil Nadu Protection of Interests of Depositors (In Financial Establishments) Act, 1997, the default in repayment of deposits and interests honouring the commitment is an offence and for making out a prima facie case under the TNPID Act, there must be a Financial Establishment and there was a collection of deposits and default in making payment of principal and interest and the person responsible in regard to the management of the affairs of the Financial Establishment are liable for prosecution.
5. Advancing his arguments, the Learned counsel for the petitioners takes a plea that the charge levelled against the Petitioners is that they have canvassed deposits to the Financial Establishment (arrayed as Accused) and when there is no allegation or averment or material to show that the petitioners/accused are the Administrative authorities or who are involved in the management of the affairs of the Financial Establishment and then, in Law the offence u/s 5 of the Act is not attracted.
6. That apart, it is the contention of the Learned counsel for the petitioners that the materials collected during investigation by the prosecution go to show that the First Accused/Financial Establishment is a Licence Holder for sale of pesticides and fertilisers.
7. Continuing further, it is submitted on the side of the petitioners that as per the registered document, it is only a proprietary concern and that the petitioners have not either acted as co-sharers or as persons who actually involved in the Financial Establishment. Also, it is not a partnership firm even as per the Investigation Report.
8. The further case of the complainant is that the Second Accused raised loans from all the beneficiaries and all the documents filed in support of such financial transaction of loans point out that the Second Accused received money on promissory note for his agricultural expenses and not even a single document has been relied on or put against the petitioners that they signed any of the promissory notes or any other documents relating to the deposits between the depositors or the other accused, Moreover, the petitioners have not executed any pronote or any valid document for Fixed Deposits to attract them as Accused.
9. The main contention advanced on behalf of the petitioners is that the First Petitioner/Accused is an Agriculturalist and he is no way connected with the Financial Establishment. Added further, the Learned counsel for the petitioners submit that the Second Respondent is the wife of the First Petitioner and the Third Petitioner is the Son-in-law of the Petitioners 1 and 2 and that the entire family has been roped in as accused without any prima facie material.
10. Lastly, the Learned counsel for the petitioners submit that the Learned Special Judge ought not to have held that even an canvassing Agency would be prosecuted under the TNPID Act, when the mandatory provisions of the Act are not attracted. Further, the impugned order of the Learned Special Judge under the TNPID Act, passed in Cr. M.P. No. 2611 of 2006 dated 14.12.2007 is not in accordance with law, the same is liable to be set aside by this Court to prevent an aberration of justice.
11. Per contra, it is the submission of the Learned Government Advocate (Criminal Side) that Cr. M.P. No. 2611 of 2006 filed by the petitioners/Accused along with other Accused before the trial Court is not maintainable in law because of the fact that the respondent/Prosecution has produced enough documents and sufficient evidence to prove the case and also examined sufficient witnesses and more than 100 documents and material objections have been collected/taken note of and in fact, the petitioners/Accused and other Accused viz., A.2 to A.6 in all had collected money from the Complainant and others in the name of A.1 and cheated the public. A.2 to A.6 with the fraudulent intention, collected deposits from 51 depositors in 76 counts and cheated to an extent of Rs. 57,59,900/-. In any event, Cr. M.P. No, 2611 of 2006 filed by the petitioners/accused herein along with other accused before the trial Court is devoid of merits.
12. This Court has heard the Learned counsel appearing for the petitioners/accused and the Learned Government Advocate (Criminal Side) for the respondent and noticed their contentions.
13. It is to be borne in mind that the ingredients of Section 227 of the Code of Criminal Procedure are to be read with Section 228 of the Code. As a matter of fact, in order to determine whether there is enough ground for proceeding against the accused, the Court of Law has a wide jurisdiction in exercising its powers which will determine the question whether the material on record, if unrebutted, is such on the basis of which a conviction can be said to be reasonably be possible, as per decision of the Honourable Supreme Court in
14. It is to be noted that after the charge has been framed, the accused has to be put on trial and convicted or acquitted. There is no provision for cancelling/dropping of charge as per
15. The word ''ground'' in Section 227 of the Code of Criminal Procedure does not mean a ground for conviction but a ground for numbering the accused on trial as per decision of Honourable Supreme Court in
16. In this connection, it is relevant for this Court to cite the following decisions, in furtherance of substantial cause of justice.
(a) In G.S. Ramarao Gupta Ad G. Anand Swaroop v. 1. The Competent Authority & District Revenue Officer, Salem and 2
Act is mainly intended to protect the rights of the depositors and incidentally a penal provision is made for the defaulters of re-payment of deposits to the depositors and interest to the depositors on the deposits collected from them.
(b) In the order of this Court in Crl. R.C. (MD) No. 508 of 2011 and M.P. (MD) No. 1 of 2011 dated 19.1.2012 between R. Saroja, Ingritta and S. Sekar v. The State, through The Inspector of Police, Central Crime Branch, Thoothukudi District (In Crime No. 9 of 2005) wherein at paragraph Nos. 4 to 8, it is observed and is laid down as under:
4. Section 239 of Code of Criminal Procedure says that:
If upon considering the police report and the documents sent with if u/s 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.
5. Section 239 refers to the opinion of the Magistrate that the charge against the accused to be groundless, as the ground for discharge. It shall not be proper to read Section 239 Cr.P.C. in isolation. Section 239 should be read in conjunction with the succeeding Section, namely Section 240 of Cr.P.C. which says:
If upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter (Chapter XIX) which such Magistrate is competent to try and which, in his opinion could be adequately punished by him, he shall frame in writing a charge against the accused.
6. A conjoint reading of Section 239 and 249 of Cr.P.C. will show that the Investigating Officer might have committed a mistake in referring to the penal provisions, but consideration of the report and the documents and after hearing, if the Magistrate comes to the conclusion that there is ground for presuming that the accused has committed any other offence triable by him, then there would not be any question of discharging the accused and the Magistrate is bound to frame a charge for such an offence. In this case, the learned Special Judge, who is deemed to be a Magistrate as per Section 13 of TNPID Act, has failed to consider whether there are materials making out a ground for presuming that the petitioners herein (A.5, A.6 and A,8) have committed any other offence punishable under IPC, especially an offence u/s 420 IPC.
7. At this juncture, it shall be appropriate to point the power of the Special Court under TNPID Act to try any other offence also. Section 6(4) refers to such power which reads as follows:
6(4) When trying any case, the Special Court may also try any offence, other than an offence specified in Section 5, with which the accused, any under the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), be charged, at the same trial.
8. In case, there was a conspiracy to commit an offence and such an offence is committed pursuant to the conspiracy, then all the persons who were parties to the conspiracy shall be liable to be prosecuted for the said offence as if the offence was committed by him also. Offence u/s 5 of the TNPID Act can also be projected against others in case, there was such conspiracy pursuant to which the offence came to be committed. Similarly, if there are materials sufficient to show the existence of a prima facie case that an offence of cheating punishable u/s 420 IPC has been committed by the erstwhile partners in collusion with the existing partners, they cannot be entirely discharged and the Court has to consider whether there is any ground for presuming the commission of such an offence by such petitioners also. Unfortunately, the learned Special Judge failed to consider the above aspects.
17. As far as the present case is concerned, in the charge sheet, it is specifically mentioned that the Revision Petitioners/Accused and other Accused have canvassed to deposit money in the Financial Establishment. But this is denied by the petitioners/accused and other Accused in the case. Whether the petitioners/accused and other Accused have canvassed with a view to raise money to the Financial Establishment viz., Lakshmi Traders or not is a matter to be gone into or looked into by the trial Court at the time of trial of the main case where parties concerned would let in oral and documentary evidence to substantiate their point of views, as opined by this Court.
18. In regard to the plea of the petitioners that the documents centering around the case are only promissory notes and not deposits as per Section 2(2) of the TNPID Act, 1997 and as such the ingredients of Section 5 of the said Act are conspicuously absent in the present case, it is to be pointed out that in some of the documents, it is described as ''Promissory Note'' and the stamp and the seal bear the name ''Lakshmi Traders Establishment Deposit, Odaipatti''.
19. The Learned Special Judge, in paragraph 16 of the order in Cr. M.P. No. 2611 of 2066, on 14.12.2007 has referred to an unreported decision of this Court in Cr. R.C. No. 310 of 2005 between Karuppasamy and 2 Others v. State dated 16.3.2005 which reads hereunder:
I have gone through the said pro-notes. Even though, it was couched as a pronote by mentioning that on demand, the petitioner is liable to repay, what was received by him was not a loan but only a deposit. Every pronote filed, mentions that it is only a deposit that was received. Therefore, the purported pronotes could only be treated as receipts. It can never be treated as pronotes as there arc materials to show the claim of exorbitant interest and Section 5 of the TNPID Act will also be applicable.
20. Coming to the plea of the petitioners that Lakshmi Traders Finance is not a registered Financial Establishment and further that the petitioners have no connection or nexus with the First Accused Financial Establishment as per the definition of Section 2(3) of the TNPID Act, It is to be pointed out that here again that the same can be gone into by the trial Court at the time of final hearing of the case.
21. There can be no two opinion of the fact that the right of the accused to seek the relief of discharge from the prosecution is available to him at any stage of the trial as per decision in
22. At this stage, this Court aptly points out the decision of the Honourable Supreme Court in
Where a case is at the stage of framing charges and the prosecution evidence has not yet commenced, the Magistrate has to consider the question of sufficiency of ground for proceeding against the accused on a general consideration of materials placed before him by the investigating police officer. The truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charge against the accused in respect of the commission of that offence.
23. One cannot brush aside an important fact that after the charge has been framed, it is not open to a Court of Law to discharge the accused as per decision in
24. The Learned counsel for the petitioners/accused submits that only very few persons are to be paid back the money by the petitioners/accused in the case and they have settled the other Depositors amounts.
25. At this stage, the Learned Government Advocate (Criminal Side) appearing for the Respondents brings it to the notice of this Court that the prosecution has examined witnesses on its side and the matter is in part-heard stage and further, because of the pendency of the Criminal Revision Petition, the matter is not proceeded further.
26. The crucial factor to be appreciated in the present case is that even though the documents are described as pronotes by its nomenclature, whether in law, they are pronotes/deposits are all matters to be gone into in threadbare by the trial Court during the trial of the main case, of course, based on oral and documentary evidence to be let in by the parties concerned. Admittedly, as on date, C.C. No. 33 of 2006 is pending at part heard stage on the file of the Learned Special Judge for TNPID Act, Chennai.
27. Be that as it may, in view of the fact that in the name of the ''Lakshmi Traders and Finance'', the allegation of the prosecution is that the petitioners/accused and other Accused have collected money from the Complainant and other depositors and they have ultimately cheated the public in not repaying their deposit amounts. In as much as the necessary charge has been framed against the petitioners/accused and also that the trial of C.C. No. 33 of 2006 is pending on the file of the Special Judge, TNPID Act at part-heard stage, this Court opines that it is not open to the Petitioners/Accused to file Crl. M.P. No. 2611 of 2006 praying for their release and discharge from the main case. As a matter of fact, the Petitioners/Accused along with others have been arrayed as Accused because they have canvassed for "Lakshmi Traders & Finance" for collecting deposits.
28. Since the charge has been framed against the Accused and the main case is at part heard stage and that the prosecution witnesses are to be cross-examined (which remain to be done) then there is no scope for dropping of the charge framed/levelled against the petitioners/accused u/s 5 of the TNPID Act and other Accused. Indeed, the trial Court has rightly dismissed Cr. M.P. No. 2611 of 2006 in issue which does not suffer from any serious impropriety or illegality in the eye of Law, as opined by this Court. Looking at from any angle, the Criminal revision Petition sans merit and the same is dismissed by this Court, for the reasons assigned in this Revision to prevent an aberration of Justice. Consequently, the connected Miscellaneous Petition No. 1 of 2012 is also dismissed.
