Heard the submissions made by the learned counsel appearing for the appellant and the learned Government Advocate (Criminal Side) appearing for the respondents herein.
2.The petitioner who is facing a judgment to be pronounced by tomorrow(30.07.2009) in C.C.No.5 of 1999 filed a petition before the learned trial Judge, praying to receive consent affidavits submitted by the 34 depositors/prosecution witnesses for the purpose of compounding the offence under section 5 of the TNPID Act. But the learned Trial Judge chose to return the petition as well as the affidavits filed along with the petition directing the petitioner to explain as to how the petition was maintainable at a stage when the case was directed to be disposed of within one month from 30.07.2009.
3.The learned counsel appearing for the petitioner would submit that the offence under section 5 of the TNPID could be compounded on payment of the dues to the depositors. 34 depositors/prosecution witnesses have come forward with affidavits enclosed along with the petition. But the learned Trial Judge never looked into those affidavits but he has chosen to return the petition questioning the maintainability thereof. Therefore he would submit that suitable direction may be issued to the Trial Judge to receive the petition along with the affidavits filed therewith to enable the petitioner to compound the offence as 34 depositors had already expressed their desire in the respective affidavits to compound the offence.
4.The learned Government Advocate (Criminal Side) appearing for the respondents would submit that it is only the competent authority under section 5A of the Tamil Nadu Protection of Interest of Depositors (In Financial Establishments) Act, 1997 who can move the court seeking permission to compound the offence after prosecution was initiated. Therefore he would submit that the petition filed by the accused along with the affidavits from 34 depositors is not maintainable.
5.It is pertinent to refer to the relevant provision under section 5A of the Tamil Nadu Protection of Interest of Depositors (In Financial Establishments) Act, 1997. An offence committed under section 5 of TNPID Act by making default in repayment of deposits and interests honouring the commitment may be compounded by the competent authority with the permission of this Special Court only on payment of the entire amount due to the depositors with or without interest. On such permission accorded to compound the offence, the criminal proceedings initiated against the accused under section 5 will come to an end.
6.It is quite clear that it is only the competent authority who shall approach the Special Court seeking permission to compound the offence. Neither the accused nor the depositors have any locus to approach directly the Special Court seeking permission to compound the offence invoking the provision under the section 5A of the said Act. Secondly, the competent authority can approach the Special Court seeking such a permission only after the entire amount due to the depositors with or without interest was already paid. Those two ingredients have not been satisfied in this case.
7.Though the Trial Judge has cited some other reason for returning the petition filed by the appellant/accused, as it is found that the petition has been filed by a person who has no locus standi to invoke the provision under section 5A of the Act, the petition itself is liable to be dismissed as not maintainable. Therefore, the petition filed by the petitioner before the Trial Court to receive consent affidavit of 34 depositors stands rejected and the Criminal Appeal filed as against the order of return is consequently dismissed.
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1.Special Judge under TNPID Act at Chennai.
2.The Inspector of Police EOW I Chennai.
3.The Competent Authority District Revenue Officer, Chennai.
4.The Public Prosecutor, High Court, Madras