A.K. Sadasivam vs M. Vijaya and 2 Others

A. Ramamurthi, J.—Petitioner/2nd accused in C.C.446/98 on the file of Judicial Magistrate I, Erode, filed the revision aggrieved against the order passed in Crl.M.P. No. 4356/98 dated 19-11-1998.

The case in brief for the disposal of the revision is as follows:

The first respondent filed a private complaint in C.C. No. 446/98 on 6-7-1998 and the same in pending on the file of Judicial Magistrate I. Erode for offences under sections 138, 141 and 142 of the Negotiable Instruments Act. The petitioner/2nd accused after receiving summons, entered appearance and defended the case. However, the first respondent/complainant filed a petition u/s 257 of the Code of Criminal Procedure alleging that the petitioner alone is responsible and the complaint can be withdrawn against the third accused. After hearing the parties, the learned Magistrate allowed the application and aggrieved against this, the present revision is filed.

Learned Counsel for the petitioner/2nd accused contended that the court below failed to note that as per the averments in the complaint and the sworn statement, accused 2 and 3 actively participated in the day-to-day affairs of the business of the first accused company. The document said to have been executed between accused 2 and 3 by fixing the liability only against the 2nd accused is a forged one. The alleged document does not contain any date of execution or the signature of the scribe. The application has been filed by the first respondent only to protect the 3rd accused. Before exercising power u/s 257, Cr.P.C. the learned Magistrate ought to have given reasons for his satisfaction. Section 257 Cr.P.C. can be exercised only in extraordinary circumstances. Since the complainant failed to show adequate grounds for withdrawal, the learned Magistrate could have proceeded with the trial. Section 257 Cr.P.C. does not contemplate a partial withdrawal nor withdrawal against one of several accused. The trial court ought to have followed the procedure laid down in section 257 Cr.P.C. before passing an order. The non-availability or whereabouts of the accused is not a valid ground for allowing the application of withdrawal of the complainant.

Learned Counsel for the first respondent contended that a document was executed between accused 2 and 3. and the liability for the suit transaction was only on the petitioner/2nd accused and only on the basis of the said agreement, the first respondent filed a petition u/s 257 Cr.P.C. to discharge the third accused from the case.

Heard the learned Counsel of both sides.

There is no dispute that the first respondent filed a complaint u/s 138 of Negotiable Instruments Act, against the petitioner/2nd accused and also on respondents 2 and 3. who are accused 1 and 3. The first accused is the company represented by the Directors 2nd and 3rd accused. The complainant filed a petition u/s 257 Cr.P.C. alleging that the second accused was the Managing Partner of the first accused and he was in charge of day to day affairs of the company and. as such the 3rd accused can be discharged and the case can be proceeded against accused 1 and 2. The 2nd accused alone resisted the petition, stating that the complainant has filed this petition only to help the 3rd accused. The alleged agreement between accused 2 and 3 was obtained under coercion and undue influence in some stamp papers as well as white papers and in respect of the same, the 2nd accused already gave a complaint with the police. Moreover, the complaint u/s 138 of Negotiable Instruments Act is filed on 6-7-1998 whereas the impugned document came into existence only on 12-6-1998. There is also a clear averment in the complaint itself that the 2nd and 3rd accused alone were in charge of day to day affairs of the company and the complainant having filed the complaint cannot now turn round and rely upon a disputed document to help the 3rd accused being discharged from the case.

The first accused is a company represented by accused 2 and 3. Now the complainant would state that the 2nd accused was the Managing Director and he was looking after the entire affairs. The alleged document came into existence on 12-6-98 between accused 2 and 3 wherein it is stated that the 3rd accused is not responsible and the 2nd accused is liable for the claim. It is necessary to state that the document in question is disputed by the 2nd accused. The copy of the document has also been filed to prove the signatures of the parties No date has been furnished. Moreover, when the document in question is disputed, the matter requires evidence. It is stated by the learned Counsel for the 2nd accused that the complaint was already given to the police in respect of this document. When this being so, now without any evidence, this cannot be accepted and acted upon to discharge the 3rd accused alone in this case. The entire approach made by the court below is not proper and correct. The court below came to the conclusion that there is no material to show that the signature was taken from the 2nd accused under coercion. When parties have not let in any evidence and filed only the document, it is not known how such a finding is arrived at. As averred to there is already a clear averment in the complaint itself that the accused 2 and 3 alone were in charge of the day to day affairs of the company and even in the sworn statement, such a stand has been taken by the complainant. Under the circumstances, I am of the view that it is too early to come to the conclusion that the impugned document is a valid one. It is open to the parties to let in proper evidence and the court below can consider the same and give a finding according to law. When once the document relied upon by the parties is disputed, this matter should have been left over to be decided in the main case only.

For the reasons stated above, the revision is allowed and the order passed by the court below dated 19-11-98 is set aside and the learned Magistrate is directed to dispose the main case C.C. No. 446/98 and dispose the same in accordance with law. The case has to be proceeded against all the accused concerned in the case. Consequently Crl.M.P. 1233/99 is closed.

It is open to the parties concerned to file application to split up the case if necessary and the learned Magistrate is directed to pass appropriate orders for split up.