IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.08.2009 CORAM: THE HONOURABLE MR.JUSTICE C.S.KARNAN Crl.O.P.No.17611 of 2007 and M.P.No.1 of 2007 1. D. Elango 2. D. Dhanam .. Petitioners/Accused 1 & 2 Versus S. David prabakar .. Respondent/Complainant Petition filed under Section 482 Cr.P.C seeking to call for the records and quash all further proceedings in C.C.No.372 of 2007 on the file of of the learned Judicial Magistrate No.II, Coimbatore. For Petitioners : M/s.B. Vasudevan For Respondent : M/s. B.Kumaraswamy O R D E R The petitioner has filed the above criminal Original Petition to call for the records and quash all further proceedings in C.C.No.372 of 2007 on the file of the Judicial Magistrate No.II , Coimbatore. 2. The respondent/complainant's case in C.C.No.372 of 2007 is that the complainant is doing business at Sowripalayam under the name and style of M/s Helix. He is one of the partners of M/s Helix company. The said company is manufacturing pneumatic valves, etc. The accused 1 and 2 / petitioners are Managing Director and Director respectively. The accused persons purchased materials on credit basis from several parties and also borrowed money from the banks and private parties both in the name of company and in their individual capacity. The complainant also supplied his products to the company and lent money to the accused. The accused had filed a petition I.P.No.75 of 1998 wherein they had to pay a sum of Rs.12,21,981/- to M/s. Helix as well as the complainant. The accused were conspiring and cheated all their creditors. The accused, in the year 1998, stealthily removed all the raw materials, finished products and other https://hcservices.ecourts.gov.in/hcservices/ properties in the company, and also the name board, with a view to cheat all and filed insolvency petition in I.P.No. 5 of 1998 in the court of the learned I Additional Subordinate Judge, Coimbatore against all their creditors. As per the list of creditors appended to the petition the accused were liable to pay a sum of Rs.42,98,137.59/-. As against the above said sum due, there were properties worth only Rs.14,26,000/-. The complainant was the 3rd respondent in the above said insolvency petition. Further, the accused persons removed all properties from the company and filed the insolvency petition. 3. Further,the accused persons did not appear in the case I.P.No. 75 of 1998 filed by them. So, the said petition was dismissed on 12.07.2004. further, the accused persons ought to have handed over all the properties to the court at the time of filing the insolvency petition. The accused person had filed the insolvency petition for the prpose of undue gain. Public has also been cheated of money. Hence, the complainant has filed the case against the accused on an alleged offence under section 421 of I.P.C. Supporting the complaint, three witnesses have been mentioned, and also a list of documents has been furnished. 4. Challenging this complaint, the petitioners have filed this Criminal Original Petition to quash the entire proceedings for the reasons stated below. 1) the averments in the complaint does not attract the offence under section 421 of I.P.C. The complaint's main allegation is that accused persons removed company properties in the year 1998. But the complaint has been filed in the year 2006, i.e. after a lapse of 8 years. Further, the petitioners submitted that on the same cause of action, CC.No.7 of 1999 has been filed before the Judicial Magistrate No.6, coimbatore. In the said case, the 1st petitioner/accused has been acquitted. On the same cause of action, the respondent/complainant has filed this 2nd petition. The said case was taken as per orders of Fast Track Court passed in Criminal Revision Petition No.117 of 2007. In the said proceedings, petitioners were not served notice. In an earlier case in C.C.No. 7 of 1999, the 1st petitioner was acquitted. There was no appeal against the acquittal. Further, the 2nd complaint has no jurisdiction. Further, in the earlier C.C.No. 7 of 1999, the allegation of complainant was also looked into. Hence, the petitioners have filed this quash petition. 5. After considering the contentions of both the sides and hearing arguments of the learned counsels, the court is of the view that there is no specific evidence to show that the company properties of the respondent, namely machineries, raw materials, finished products, were removed by the petitioners in the relevant period. Hence the Court is warranted to interfere in the proceedings in C.C.No.372 of 2007 on the file of of the learned Judicial https://hcservices.ecourts.gov.in/hcservices/ Magistrate No.II, Coimbatore, and quash the same. Accordingly, the proceedings are quashed and Criminal Original Petition No.17611 of 2007 is allowed. Consequently, connected Miscellaneous Petition is closed. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar mra To 1. The Judicial Magistrate No.II, Coimbatore 2. -do- Through The Chief Judicial Magistrate,Coimbatore. 3. The Public Prosecutor, High Court, Madras-104. + 1 cc to Mr.B.Kumarasamy,Advocate,SR.35942 Crl.O.P.No.17611 of 2007 and M.P.No.1 of 2007 NSM(CO) EM/19.8.09 https://hcservices.ecourts.gov.in/hcservices/