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2003 DIGILAW 2158 (MAD)

S. Sarvothaman & Others v. S. Gunasekaran

2003-12-30

M.THANIKACHALAM

body2003
Judgment :- This order shall dispose of the above two petitions. 2. Accused 1,2,3,10,11,21 & 22 and accused 13 and 14 in C.C.No.6719/2003 have filed Crl.O.P.Nos.34037/2003 and 39617 of 2003 respectively, to quash the proceedings against them. 3. The respondent by name Gunasekaran, has filed a private complaint against the above said petitioners and others, before the XIth Metropolitan Magistrate, Saidapet, seeking appropriate punishment under Sections 423, 465, 466, 468, 471, 420, 474 r/w 120(B) I.P.C. The case of the respondent/complainant is that the property comprised in Survey Nos.146/5, 146/6 originally belonged to one Dayanidhi, who executed a Will in favour of one Pushpakanthammal, bequeathing the same. Under the Will though Pushapakanthammal and her mother Sivagami are the legatees, Sivagami did not avail the benefit of Will and in this view, Pushpakanthammal became the sole legatee of the property and the Will was also got probated in her favour. The complainant Gunasekaran claims, he is the son of Neelayadakshi, who is the only daughter of Pushpakanthammal, the sole legatee, and by the non testamentary succession under Hindu Law, now the property belongs to Neelayadakshi and her two sons viz., the petitioner and Kalaivanan. 4. The complaint reads, that the first accused Sarvothaman, claiming to be the adopted son of late Somasundaram Chettiar, had sold the properties, to various persons, plotting out the same, even without title, in favour of many persons. The complaint further suggests, that the purchasers are also liable to be prosecuted. It is the further case of the complainant, that the execution of the document of sale between A1 and A2 as well as others were created with dishonest and fraudulent intention, in order to commit an offence against the public at large, thereby attracting Section 423 I.P.C. It is the further case of the complainant, in order to have illegal gain, by means of illegal documents, number of plots had been sold to A3 to A26. Thus, describing the purchase said to have been made by the accused, the respondent would contend, that the accused have committed the offences under Sections 423, 465, 466, 468, 471, 420, 474 r/w 120(B)I.P.C. In this view, the complainant sought to prosecute the petitioners as well as other accused. 5. Thus, describing the purchase said to have been made by the accused, the respondent would contend, that the accused have committed the offences under Sections 423, 465, 466, 468, 471, 420, 474 r/w 120(B)I.P.C. In this view, the complainant sought to prosecute the petitioners as well as other accused. 5. The accused petitioners have contended, that the property in dispute, which had the bymash numbers 401, 402/A, 403 and 404 measuring 1.7.10 kanis, originally belonged to one Somasundara Chettiar, the father of the first accused/petitioner, and under the Estate Abolition Act, the above bymash numbers were included in Survey No.146/5. It is the further case of the accused/petitioners, that Somasundra Chettiar, adopted the first accused, Sarvothaman on 7.9.1956 and in view of the adoption, the property devolved upon him. As owner, the first accused petitioner dealt with the property in his own right, in which the complainant has no right and therefore, questioning the sales, prosecution would not lie against the seller, as well as the purchasers. Further, it is contended in the petition that the accused are in open and continuous possession of the disputed property, for more than a decade, having put up constructions, to the knowledge of the respondent/complainant, and if at all, if the respondent has any right, he ought to have moved the civil forum, for establishing his right, and ought not to have chosen the criminal forum, which is an abuse of process of law, and in this view, the petitioner prayed for quashing the proceedings. 6. The learned counsel for the petitioners, submits that the claim of the complainant that he is the owner along with somebody, is totally false and without making a case for title, which is disputed, prosecution would not lie, as if A1 committed forgery or cheating, as the case may be and in this view, it should be held, no offence is made out, in the absence of specific averment in the complaint. It is the further submission of the learned counsel for the petitioners, that scanning the entire complaint, we could find no specific allegations, against the accused, indicting with the criminal act, depicting the particulars, which would lead to the inference, that if the allegations are not rebutted, there is possibility of convicting the accused petitioners. On these lines, the prayer is made for quashing. 7. On these lines, the prayer is made for quashing. 7. Opposing the above contention, the learned counsel for the complainant would submit, that there are sufficient allegations, in the complaint, making out a prima facie case, for further proceedings and therefore, thrashing the case, at the threshold itself, is not desirable and the case should proceed to have its legal destination. 8. By going through the complaint preferred by the respondent, meticulously, as repeatedly submitted by the learned counsel for the petitioners, I am unable to find any specific allegations, attracting any specific penal provisions of law, with specific instances also, such as, what are the documents forged, what kind of cheat was committed, on what date the said criminal acts were committed etc. Except some omnibus allegations, in the complaint, to attract the specific offences under Sections 423, 465, 466, 471, 420 474 r/w 120(B) I.P.C., I find nil allegations, and in this view, I do feel, allowing the criminal case, to go for further trial, is unnecessary and it should be nipped in the bud. In this context, we have to see the averments. 9. A reading of the complaint makes it, abundantly clear that there is a dispute between the parties, regarding the ownership of the disputed property viz. Survey Nos.146/5 or 146/6, as the case may be. Unless the ownership of the property is decided civilly, one cannot say positively, that the property belonging to the respondent/complainant, and his brothers, were sold by the first accused, by creating false documents. While the respondent claims title under one Neelayadakshi, the first accused claims title under one Somasundara Chettiar, whose father appears to have purchased the property elsewhere in the year 1929 i.e. a document dated 10.2.1929. Though in the complaint, it is stated that the property originally belonged to Dayanidhi, I find no allegations, how that Dayanidhi acquired the property, whether it is ancestrally or under acquisition etc. Only on the basis of the Will said to have been executed by Dayanidhi, a right of inheritance is claimed in favour of Neelayadakshi, that too ignoring one of the legatees viz., Sivagami, for which we find no materials. 10. Paragraph-7 of the complaint says, that the property belongs to Neelayadakshi by non testamentary succession under Hindu Law and her two sons Mr. Gunasekaran, respondent/complainant as well as Kalaivanan. 10. Paragraph-7 of the complaint says, that the property belongs to Neelayadakshi by non testamentary succession under Hindu Law and her two sons Mr. Gunasekaran, respondent/complainant as well as Kalaivanan. If the property was inherited by Neelayadakshi, her sons could not claim, as if the property belonged to the Hindu Joint Family, which is unknown to Hindu Law. Therefore, the averments in the complaint itself, creates a doubt regarding the ownership claimed by the respondent. Unless, the dispute regarding the ownership is settled, by a competent forum, as such, one of the sons of Neelayadakshi cannot maintain a complaint, as if without any right, the first accused had plotted out and sold the property, detriment to the interest of the complainant, and the family members. The allegations make it crystal clear, that an attempt is made to convert a civil dispute into one of criminal case, thereby compelling the other parties, to come to a term, if possible for which, court should not be a party. In this view, I am of the considered opinion, that the act of the complainant is an abuse of process of law and it should not be allowed to continue and in this view, the complaint is liable to be quashed. 11. The complaint running to 44 paragraphs, though describes the sale executed by A1 in favour of others, does not make out a case of offence. The averments in paragraph-16 of the complaint reads "the execution of the document of sale between A1 and A2 is dishonest and fraudulent attracting 423 of I.P.C. The acts committed by both constitute an offence against the public at large also. It is a misrepresentation permanently attached to the property. A1 and A2 promised purchasers that afterwards they would help to sell that property." From this allegation, no offence is made out, to attract Section 423 I.P.C., which says, about the dishonest or fraudulent execution of deed of transfer, containing false statement of consideration. Paragraph 22 of the complaint reads: "A1 has no locus standi to make and execute the above sale deeds." Merely by describing the sale itself, in favour of A3, A4, A5, A7, A9 said to have been executed in the years 1995, 1996, 1999, no averments indicating - how it can be said, that an offence is made out. Paragraph 22 of the complaint reads: "A1 has no locus standi to make and execute the above sale deeds." Merely by describing the sale itself, in favour of A3, A4, A5, A7, A9 said to have been executed in the years 1995, 1996, 1999, no averments indicating - how it can be said, that an offence is made out. By mere execution of the sale deed by A1, who claims title to the property, it cannot be said that an offence is made out. Except quoting the Sections in paragraph 44 of the complaint, I am unable to find any prima facie allegations, to attract Sections 465 I.P.C., which contemplates punishment for forgery, 466 I.P.C. which contemplates punishment for forgery of record of court or of public register etc., 468 I.P.C. which contemplates punishment for forgery for purpose of cheating, 471 I.P.C. which contemplates punishment for using a forged document as genuine, 420 I.P.C. for cheating and dishonestly inducing delivery of property and 474 I.P.C., which contemplates punishment for being in possession of document described in Section 466 or 467 I.P.C. Though 120(B) I.P.C. is also there, it is in the statute book and nothing is said in the complaint, how the conspiracy is hatched, between the parties, at what point of time, where etc. 12. Under the above said circumstances, when there is a dispute regarding the ownership of the property, a sale deed executed by a person, claiming to be the owner, to various persons, could not be described, as an offence and if at all, the complainant ought to have worked out his remedy before the proper forum viz., Civil Court, and his approach to the criminal court, in my considered opinion, amounts to an abuse of process of court, which could not be allowed to continue for the reasons assigned by me supra. The other accused though have not approached the court, for quashing the proceedings, the entire allegations as pointed out by me supra, in the complaint, fail to make out a prima facie case, against any person, including the other accused and therefore, the entire proceedings should be quashed, instead of quashing the proceedings against the petitioners alone. The result therefore is, both the petitions are allowed and the proceedings in C.C.No.6719 of 2003 against all the accused, including these accused petitioners are quashed. Consequently connected Crl.M.Ps. are closed.