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2011 DIGILAW 1415 (MAD)

D. Prabhakar v. Durai Kannu Naicker

2011-03-14

T.MATHIVANAN

body2011
Judgment :- 1. Invoking the proviso under Section 482 Cr.P.C., this petition is filed by the petitioners to quash the proceedings in C.C.No.640 of 2005 which is pending on the file of the Learned Judicial Magistrate, Alandur. 2. The background facts warranted to file this petition are detailed as under. 3. The petitioners are accused No.3 & 4 in the case in C.C.No.640 of 2005 which is pending on the file of the Learned Judicial Magistrate, Alandur. The respondent herein has filed this complaint under Section 190(1)(a) of Cr.P.C. against four persons which includes the petitioners herein, to deal with them under Sections 406, 417, 420, 465, 471 and 120(B) of IPC. The accused 1 and 2 have been declared as proclaimed offenders by an order of the Learned Judicial Magistrate, Alandur dated 28.05.2009. Thereafter the case against them has been split up and numbered as C.C.No.550 of 2010 which is also pending before the said Court. 4. The respondent has alleged in his complaint that he is the owner of a piece of land comprised in Survey No.565/1 and 674/1 measuring 10 cents at Sholinganalur Village. He was badly in need of money to met out the marriage expenses of his daughter. He was informed that the first accused has been doing brokerage in arranging finance on properties. When the respondent had approached the first accused, he had asked some details about the property and the respondent was also asked to hand over all the original parent deeds and other documents pertaining to the property under the pretext of getting scrutiny and legal opinion. Accordingly the respondent had handed over the documents, detailed in the complaint, to the first accused herein. 5. Apart from this the first accused had also received a sum of Rs.1,000/- for getting legal opinion and assured that the loan would be approved within one month. But he had neither arranged for the loan nor even had returned back the documents. 6. In the mean while, the first accused had brought the second accused to the residence of the respondent and assured that he would arrange loan through the second accused who is also a loan broker having tie-up with other financiers. The second accused had also promised that he would arrange for loan within short while. 6. In the mean while, the first accused had brought the second accused to the residence of the respondent and assured that he would arrange loan through the second accused who is also a loan broker having tie-up with other financiers. The second accused had also promised that he would arrange for loan within short while. The second accused had also represented that he had already handed over the title deeds with the financiers and the same were under scrutiny. Left with no other option the respondent was constrained to believe the words of the first and the second accused. On enquiry the respondent was put to understand that the first and the second accused had handed over all the original documents pertaining to his property to the petitioners 1 and 2 herein, who are the 3rd and 4th accused in the complaint. It is also alleged that all the accused including the petitioners had conspired together and in furtherance of their conspiracy the first accused had forged the signature of the respondent/complainant and pledged the original documents with the Indian Bank, Mannadi Branch, Chennai and obtained loan for the personal use of the petitioners/accused 3 and 4. 7. In this connection the respondent had lodged a complaint on 30.11.1996 before the Inspector of Police C4 Toraipakkam Police Station, Chennai for which the police had issued a receipt vide CSR.No.540 of 1996 on the same day. Thereafter, the police had failed to investigate and find out the truth. After strenuous efforts made by the respondent/complainant a case was registered on the file of the Inspector of Police C4 Toraipakkam Police Station, Chennai in Crime No.1082 of 1997 under Section 406 and 420 of IPC, against the first accused only. The first accused was also arrested and his confessional statement was also recorded on 16.09.1997. The confessional statement revealed that the first accused had conspired with the petitioners/accused 3 and 4 and posed himself as the real owner of the property and had deposited all the title deeds with the Indian Bank Mannadi Branch without the consent of the respondent/complainant enabling the petitioners 1 and 2/accused 3 and 4 to obtain the loan. Further the police had also enquired the officials of the Indian Bank, Mannadi Branch and seized all the original deeds from the bank and also took the specimen signature of the first accused. Further the police had also enquired the officials of the Indian Bank, Mannadi Branch and seized all the original deeds from the bank and also took the specimen signature of the first accused. Thereafter, the second accused had surrendered before the Learned Judicial Magistrate, Saidapet. Then the respondent/complainant was put to understand that the case in Crime No.1082 of 1997 on the file of the Inspector of Police C4 Toraipakkam Police Station, Chennai was closed as mistake of fact. The police had failed to issue any notice about the closure of the complaint to the respondent. All the accused including the petitioners 3 and 4 had unlawfully gained by giving the respondent's/complainant's property as security with the bank and the first and the second accused had deceived the respondent/complainant, who had handed over the documents on good faith, that they would arrange loan for him, and this amount to criminal breach of trust. Hence the respondent has filed the complaint against all the accused persons including the petitioners 1 and 2 herein to punish them under Sections 406, 417, 420, 465, 471 and 120(B) of IPC. 8. In this Connection Mr.J.Sudhakaran, the learned counsel appearing for the petitioners has submitted that there are no specific allegations to make out the case as against the petitioners and that the complaint in C.C.No.640 of 2005 has been filed before the Learned Judicial Magistrate, Alandur with an ulterior motive. He has also contended that mere allegations that the accused 1 and 2 had handed over the original documents to the petitioners and that they had obtained loan by giving the properties of the respondent/complainant as security with the bank would not be sufficient to bring them under the criminal charges which are levelled against them. He has also submitted that there is no specific averment in the complaint that the petitioners/accused 3 and 4 had involved themselves in the offence. He has also contended that the alleged offences under Sections 406, 417, 420, 465, 471 and 120(B) of IPC are neither maintainable in law nor on facts and that the criminal complaint in C.C.No.640 of 2005 filed by the respondent/complainant against the petitioners/accused 3 and 4 is liable to be quashed. He has also contended that the alleged offences under Sections 406, 417, 420, 465, 471 and 120(B) of IPC are neither maintainable in law nor on facts and that the criminal complaint in C.C.No.640 of 2005 filed by the respondent/complainant against the petitioners/accused 3 and 4 is liable to be quashed. He has also submitted that the respondent had filed a proof affidavit on 19.08.2010 by way of commencement of trial before the trial court without actually examining himself and proving the case which is totally unknown to the Code of Criminal Procedure. Hence he has urged before this Court that the proceedings in the case in C.C.No.640 of 2005 be quashed after calling for the records. 9. In support of his argument, he has placed reliance upon the following decisions; 1. K.S.Narayanan and others vs. S.Gopinathan reported in 1982 Cri.L.J. 1611. 2. Dr. Sharda Prasad Sinha vs. State of Bihar reported in AIR 1977 SC 1754 . 3. R.P.Kapur vs. State of Punjab reported in AIR 1960 SC 866 . 10. In K.S.Narayanan and others case (1982 Cri.L.J. 1611) a petition under Section 482 and 203 of Cr.P.C. was filed to quash the criminal complaint on the ground that; "the facts of the complaint are not constituting the offence alleged. When this matter happened to be dealt with by this Court (Madras High Court) the learned Single Judge has held that a complaint should contain allegations and necessary facts which prima facie disclose the commission of an offence. No doubt the High Court ought not to exercise its inherent powers under Section 482 ordinarily by way of quashing the complaint but where the facts alleged in the complaint even if accepted to be correct at their face value do not make out an offence against the accused it is the obvious duty of the High Court under Section 482 to quash the proceedings to save the accused person from the agony of facing an unnecessary trial." 11. It is also observed that; "Merely levelling a charge of conspiracy without mentioning how, where, when and which of the conspirators hatched the conspiracy and for what purpose or circumstances warranting an inference of existence of conspiracy is not enough to bring the accused to face a trial in a criminal court and therefore the criminal proceedings are liable to be quashed." 12. In Dr. In Dr. Sharda Prasad Sinha vs. State of Bihar reported in AIR 1977 SC 1754 it is observed that; "It is now settled law that where the allegations set out in the complaint or the charge-sheet do not constitute any offence, it is competent to the High Court exercising its inherent jurisdiction under Section 482 of the Code of Criminal Procedure to quash the order passed by the Magistrate taking cognizance of the offence. The question which, therefore, arises for consideration is whether the allegations set out in the complaint constitute any offence against the appellant." 13. In the third case 'viz', R.P.Kapur vs. State of Punjab reported in AIR 1960 SC 866 it is held that; "The inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction." 14. The Apex Court has also carved out three categories of cases where the inherent jurisdiction to quash to be exercised. The categories are; "(i) Where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceedings in respect of the offence alleged. Absence of the requisite sanction may, for instance, furnish cases under this category. (ii) Where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. (iii) Where the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge." 15. (iii) Where the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge." 15. The Apex Court has also held that; "In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under Section 561-A (present Section 482 Cr.P.C.) the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. Thus the function of the trial magistrate and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence that accusation made against the accused would not be sustained." 16. On the other hand Mr.R.Murali, the learned counsel for the respondent/complainant would contend that the petitioners have filed this quash petition only on the ground that the respondent/complainant had filed proof affidavit instead of oral deposition on his behalf and that the petitioners never denied the allegations levelled against them. He has also contended that even assuming for the sake of argument that the respondent/complainant had filed a proof affidavit that may be only a procedural defect which is curable in the interest of justice and the said defects would not in any way absolve the criminal liability of the petitioner/accused 3 and 4. He has also added that the petitioners are the main offenders in the case and they are the beneficiaries in getting loan by pledging the title deeds of the respondent/complainant with the bank and therefore, they have to face the trial to secure fair justice. He has also added that the petitioners/accused 3 and 4 were having knowledge about the commission of the offence and that they had also participated in committing the offence which would clearly go to show that they are liable to be tried for the above said offences before the Court of law. 17. He has also added that the petitioners/accused 3 and 4 were having knowledge about the commission of the offence and that they had also participated in committing the offence which would clearly go to show that they are liable to be tried for the above said offences before the Court of law. 17. The learned counsel for the respondent has also submitted that when the proof affidavit was filed by the respondent/complainant on 19.08.2010, a copy of the same was duly served on the petitioners/accused and even after receiving the copy of the proof affidavit they never raised any objection for filing proof affidavit before the trial court. Thereafter the case was posted for examination of the respondent/complainant on 13.09.2010, 20.09.2010, 04.10.2010, 07.10.2010, 13.10.2010 and 21.10.2010 and even in all the above said hearings, the petitioners have never raised their little finger against the proof affidavit filed by the respondent/complainant. He would submit further that the petitioners/accused 3 and 4 were not prevented from cross-examining the respondent/complainant on the basis of the proof affidavit filed on his behalf. The learned counsel for the respondent has also urged that the petition for quashing the proceedings in C.C.No.640 of 2005 has been filed vexatiously only to protract the proceedings and to escape from the clutches of law, and therefore the petition might be dismissed. 18. In support of his contention he has placed reliance upon the following decisions; 1. K.Ashoka vs. N.L.Chandrashekar and Others reported in 2009 5 SCC 199 . 2. Ravindra Kumar Madhanlal Goenka and Another vs. Rugmini Ram Raghav Spinners Private Limited reported in 2009 11 SCC 529 . 3. Ravi Modi vs. Sanjay Jain and Others reported in 2009 13 SCC 241 . 19. In K.Ashoka's case( 2009 5 SCC 199 )the division bench of Hon'ble Supreme Court of India headed by his Lordship Hon'ble Mr. Justice S.B.Sinha, has held that; "It is now a well-settled principle of law that the High Court in exercise of its inherent jurisdiction under Section 482 of the Code may quash a criminal proceeding inter alia in the event the allegations made in the complaint petition even if they are taken at their face value and accepted in their entirety does not disclose commission of a cognizable offence. Some of the principles which would be attracted for invoking the said jurisdiction have been laid down in Indian Oil Corporation vs. NEPC India Ltd., reported in (2006) 6 SCC 736 : (2006) 3 SCC (Cri) 188; "(i) A complaint can be quashed where the allegations made in the complaint they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint. (ii) A complain may also be quashed where it is a clear abuse of the process of the Court, as when the criminal proceeding is found to have been initiated with malafides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. (iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. (iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence. (v) A given set of facts may make out: (a)purely a civil wrong; or (b) purely a criminal offence; (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute; apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not." 20. While penning down the judgment on behalf of the Division Bench, his Lordship has also held that the High Court cannot quash the complaint if the allegations prima facie discloses commission of cognizable offence. 21. In Ravindra Kumar Madhanlal Goenka and Another vs. Rugmini Ram Raghav Spinners Private Limited reported in 2009 11 SCC 529 a Division Bench of the Apex Court has held that; "18. While entertaining a petition under Section 482 Cr.P.C, the materials furnished by the defence cannot be looked into and the defence materials can be entertained only at the time of trial. It is a well-settled position of law that when there are prima facie materials available, a petition for quashing the criminal proceedings cannot be entertained. The investigation agency should have had the freedom to go into the whole gamut of the allegations and to reach a conclusion of its own. Pre-emption of such investigation would be justified only in very extreme cases." 22. In Ravi Modi vs. Sanjay Jain and Others reported in 2009 13 SCC 241 a Division Bench of the Apex Court while dealing with the inherent powers of the High Court conferred under Section 482 Cr.P.C. has referred the decision in State of H.P. vs. Pirthi Chand reported in 1996 2 SCC 37 : 1996 SCC (Cri) 210 wherein it is observed that; "13. ... When the Court exercises its inherent power under Section 482, the prime consideration should only be whether the exercise of the power would advance the cause of justice or it would be an abuse of the process of the Court. 12. It is thus settled law that the exercise of inherent power of the High Court is an exceptional one. Great care should be taken by the High Court before embarking to scrutinise the FIR/charge-sheet/complaint. 12. It is thus settled law that the exercise of inherent power of the High Court is an exceptional one. Great care should be taken by the High Court before embarking to scrutinise the FIR/charge-sheet/complaint. In deciding whether the case is the rarest of rare cases to scuttle the prosecution in its inception, it first has to get into the grip of the matter whether the allegations constitute the offence. It must be remembered that FIR is only an initiation to move the machinery and to investigate into cognizable offence. After the investigation is conducted and the charge-sheet is laid, the prosecution produces the statements of the witnesses recorded under Section 161 of the Code in support of the charge-sheet. At that stage it is not the function of the Court to weigh the pros and cons of the prosecution case or to consider necessity of strict compliance with the provisions which are considered mandatory and its effect of non-compliance. It would be done after the trial is concluded. The Court has to prima facie consider from the averments in the charge-sheet and the statements of witnesses other record in support thereof whether the court could take cognizance of the offence on that evidence and proceed further with the trial. If it reaches a conclusion that no cognizable offence is made out, no further act could be done except to quash the charge-sheet. But only in exceptional cases i.e., in the rarest of rare cases of mala fide initiation of the proceedings to wreak private vengeance issue of process under the Criminal Procedure Code is availed of. A reading of a complaint or FIR itself does not disclose at all any cognizable – the Court may embark upon the consideration thereof and exercise the power." 23. This Court has considered the submissions made on behalf of both sides and perused all the materials available on record and the complaint in C.C.No.640 of 2005, which is sought to be quashed in this petition. This Court is of the considered view that prima facie, it appears that sufficient grounds are available to proceed against the petitioners/accused 3 and 4. The allegations made in the complaint discloses, commission of a cognizable offence. The first accused in this case had promised the respondent/complainant to arrange for a loan to the extent of Rs.50,000/-. This Court is of the considered view that prima facie, it appears that sufficient grounds are available to proceed against the petitioners/accused 3 and 4. The allegations made in the complaint discloses, commission of a cognizable offence. The first accused in this case had promised the respondent/complainant to arrange for a loan to the extent of Rs.50,000/-. It appears that the first accused had not complied with his promise and later on he had handed over all the original title deeds and other related documents pertaining to the property of the respondent/complainant to the second accused. It also appears that both the first and the second accused had met the respondent/complainant and assured him that they would arrange for the loan. Instead it is alleged that they entrusted the above mentioned documents with the Indian Bank, Mannadi Brnach, Chennai as security and forged the signature of the respondent/complainant to make it appear that they are the real owners of the property and thereafter they had obtained loan in favour of the petitioners/accused 3 and 4. Since the respondent/complainant has made out prima facie case to proceed against the petitioners as well as the other accused persons, this Court does not see any reason to quash the proceeding in C.C.No.640 of 2005 which is pending on the file of the Learned Judicial Magistrate, Alandur. In the result the petition is dismissed. Consequently, the miscellaneous petition is also closed. The trial court is directed to proceed with the case in C.C.No.640 of 2005, without getting influenced by the observation of this Court and dispose the case individually on application of its indical mind in accordance with law within a stipulated period of four weeks from the date of receipt of a copy of this order.