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2010 DIGILAW 1611 (MAD)

D. Mohanasundaram, v. K. N. Kandasamy

2010-04-06

C.T.SELVAM

body2010
Judgment : This petition has been filed under Section 482 Cr.P.C, seeking to call for the records pertaining to the proceedings in C.C.No.96 of 2004, on the file of the learned Judicial Magistrate No.II Udumalpet, against the petitioners herein to prosecute them for the alleged offences under Section 3 punishable under Section 4 of the Tamil Nadu Prohibition of Charging Exorbitant Interest Ordinance No.2 of 2003 and quash the proceedings against them. 2. The petitioners inform that they have been falsely implicated in the case on the allegation that the respondent / complainant had borrowed a sum of Rs.1,50,000/- in February 2001 and Rs.1,00,000/- in March 2001 from the petitioners, that the complainant had repaid a sum of Rs.4,00,000/- upto December 2003 and that the petitioners had been charging exorbitant interest on such sums borrowed without giving any credit to the sum repaid by the respondent / defacto complainant. 3. The respondent / complainant had further alleged that he had handed over several signed blank promissory notes, signed cheques and some other signed stamp papers which had been misused by the petitioners and the same were used for the purpose of filing a suit in O.S.No.40 of 2002 before the Sub Court Udumalpet. The petitioners would contend that pursuant to the sale agreement dated 28.08.2001 in respect of the property of the complainant, a sum of Rs.1,90,000/- was paid and possession of the land was taken by the petitioners. As the complainant failed to execute the sale deed within the stipulated period, the petitioners filed a suit for specific performance in O.S.No.40 of 2002 before the Sub Court, Udumalpet. Such suit was decreed and by way of execution proceedings in E.P.No.113 of 2002 and upon deposit of the balance sale consideration, a sale deed was executed by the Court in favour of the petitioners on 02.06.2003. The entire proceedings had been allowed to go ex-parte by the respondent. It is submitted on behalf of the petitioners that the complaint filed against them is false and the same has been lodged after a period of eight months after the execution of sale deed in their favour by the Court. 4. The entire proceedings had been allowed to go ex-parte by the respondent. It is submitted on behalf of the petitioners that the complaint filed against them is false and the same has been lodged after a period of eight months after the execution of sale deed in their favour by the Court. 4. A perusal of the petition filed by the respondent / defacto complainant for setting aside the ex-parte decree against him shows that his contention is that he had borrowed moneys towards repayment of which he had paid over large sums of money and for the borrowings he was required to execute several documents such as promissory notes, signed cheques and some other signed stamp papers, which have been misused by the petitioners herein for obtaining a decree in their favour. The respondent / complainants contention is that after great difficulty and after a lapse of long time he came to know about the decree passed against him. 5. A portion of the complaint preferred against the petitioners reads as follows: “All my account books are with the respondents. From my memory at the best I can say that I have borrowed a sum of Rs.1,50,000/- (Rupees One lakh fifty thousand only) in the first week of February 2001. Then I have borrowed another sum of Rs.1,00,000/-(Rupees One lakh only) in the course of the month of March 2001. Total amount I have borrowed from them is Rs.2,50,000/- (Rupees Two lakhs and fifty thousand only). But before the end of December 2003 I have repaid more than Rs.4,00,000/- towards principal and interest. Interest calculated at the rate of 9% per annum may not exceed Rs.63,000/- (Rupees Sixty three thousand only). Hence there is an excess or over payment of about Rs.87,000/-.” 6. From the above extract, it is apparent that no useful purpose would be served in continuing the prosecution against the petitioners. The basic ingredients which would call for further enquiry and decision upon the commission of offence by the petitioners are totally lacking. For this reason, the petition to quash the proceedings in C.C.No.96 of 2004 would have to be allowed. 7. However, it may be noted that the order of this Court in this Criminal Original Petition No.19891 of 2004 shall in no manner affect the Civil proceedings pending between the parties. For this reason, the petition to quash the proceedings in C.C.No.96 of 2004 would have to be allowed. 7. However, it may be noted that the order of this Court in this Criminal Original Petition No.19891 of 2004 shall in no manner affect the Civil proceedings pending between the parties. The complaint against the petitioner is quashed only on the ground that sufficient ingredients are lacking in the complaint. The Civil dispute between the parties will be one which has to be decided on its own merits by the Civil Court. 8. Hence, this Criminal Original Petition is allowed. Consequently, connected CMP is closed.