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2012 DIGILAW 578 (MAD)

Chella Basker v. Ganesan

2012-02-03

S.TAMILVANAN

body2012
ORDER 1. This Criminal Revision has been preferred challenging the order dated 24.5.2011 made in Crl.M.P. No. 2299 of 2011 on the file of the learned Judicial Magistrate, Sankarankovil. 2. The petitioner herein had filed a private complaint against the respondents under Sections 200 and 156 (3) of the Code of Criminal Procedure. In the private complaint, the petitioner has stated that he was employed as Assistant Surgeon in E.S.I Government Hospital, Sivagasi, on the date of complaint. According to him, when he was visiting his punja land at Kaarisathan village, the first respondent/ Ganesan, who owned the neighbouring land, informed the petitioner that he had 57½ cents land on the East in S. No. 281/1B and his brother Murugan got 57½ cents land on the West of his property and requested him to purchase the said lands, since both were willing to sell the property to the petitioner herein. He has further stated that the first respondent is the husband of second respondent, the third respondent is paternal cousin of the first respondent and the fourth respondent is a land broker. The respondents 1 to 3 and the said Murugan had informed the petitioner that the first respondent and his brother Murugan are jointly owning 1 acre and 15 cents of land in S. No. 281/1B and also showed their land to the petitioner. 3. The first respondent agreed to sell his land of 57½ cents at Rs. 1,15,000/- to the petitioner and for which the first respondent received an advance amount of Rs. 10,000/-, similarly his brother Murugan also received the advance amount of Rs. 10,000/-. Subsequently, the first respondent’s brother Murugan executed a sale deed for a consideration of Rs. 1,15,000/- on 15.6.2009, in respect of his extent of 57½ cents. However, the first respondent, without executing the sale deed, was causing delay and finally after getting the balance of consideration, on a compelling circumstance, executed the sale deed on 29.9.2010 in favour of the petitioner of his 57½ cents of land. However, the petitioner came to know that the second respondent herein had informed the villagers that the sale deed executed by the first respondent in favour of the petitioner is not valid. However, the petitioner came to know that the second respondent herein had informed the villagers that the sale deed executed by the first respondent in favour of the petitioner is not valid. Hence, the petitioner went to the concerned office of the Sub-Registrar and verified the records and found that on 22.9.2010 itself, the first respondent had executed a sale deed in favour of his wife, the second respondent herein. 4. The petitioner has further stated that the third respondent is working in BSNL Office, Madurai as JDO, who informed the petitioner that he was also owning an extent of 1 acre 84 cents of land in S. No. 888 and 901/1 at Kaarisathan Village and told the petitioner to purchase his land also and accordingly, the consideration was fixed at Rs. 600/- per cent and an advance amount of Rs. 25,000/- was paid to the third respondent on 24.3.2009 through the fourth respondent/land broker. Subsequently, on 27.5.2009, the third respondent received a sum of Rs. 40,000/- from the petitioner and on 20.9.2009, he received a sum of Rs. 15,000/-. A sum of Rs. 10,000/- was deposited in the bank account of the third respondent at State Bank of India, Thallakulam Branch, Madurai, as requested by him. On 23.9.2009, on behalf of the third respondent, the first respondent received a sum of Rs. 15,000/- and totally a sum of Rs. 1,05,000/- was received by the respondents 1, 3 and 4 from the petitioner. However, the third respondent failed to execute sale deed in respect of 1 acre and 84 cents of land belonging to him. According to the petitioner, the respondents 1 to 4 have totally received a sum of Rs. 2,20,000/-, however, the second respondent filed a suit on false averments in O.S. No. 103 of 2011. 5. According to the petitioner, the respondents had cheated the petitioner, hence on 17.2.2010, he gave a complaint before Karivalamvanthanallur police station. However, the Sub-Inspector refused to receive the complaint on the ground that there is civil suit pending between the parties. Subsequently, the petitioner lodged a complaint before the District Superintendent of Police and the same was forwarded to Karivalamvanthanallur police station. During enquriy, the first respondent produced a xerox copy of the sale deed, dated 22.9.2010 executed in favour of the second respondent herein. The sale deed was registered as Document No. 2973 of 2010. Subsequently, the petitioner lodged a complaint before the District Superintendent of Police and the same was forwarded to Karivalamvanthanallur police station. During enquriy, the first respondent produced a xerox copy of the sale deed, dated 22.9.2010 executed in favour of the second respondent herein. The sale deed was registered as Document No. 2973 of 2010. A copy of the same was also furnished to the petitioner, however, no steps were taken by the police. With the above averments, the petitioner herein sought an order from the Court below under Section 156 (3) Cr.P.C., in order to prosecute the respondents, who have committed the offence punishable under Sections 406 and 420 IPC. 6. As per the impugned order, dated 24.5.2011 passed in Crl.M.P. No. 2299 of 2011, learned Judicial Magistrate, Sankarankovil, held that there is no prima facie case made out by the petitioner/complainant, based on the evidence and supporting materials. Accordingly, the same was dismissed under Section 203 Cr.P.C. Aggrieved by which, the Criminal Revision has been preferred by the petitioner/complainant. 7. Mr. S. Ramasamy, learned counsel appearing for the petitioner submits that learned Judicial Magistrate had simply dismissed the private complaint of the petitioner, on the ground that there is no sufficient ground for proceeding against the respondents. It was further contended on the side of the petitioner that the Court below could not have dismissed the complaint, based on the contradictions shown in the statements of witnesses and that the procedure contemplated under Section 202 Cr.P.C was not followed by the Court below. 8. It is argued that in a case of private complaint, the Court below cannot dismiss the same by doubting the evidentiary value whether the same is believable or not. It was contended by the learned counsel for the petitioner that the Court below has dismissed the private complaint on the ground of consideration of merits and demerits of the case, as contemplated under Section 203 Cr.P.C. 9. It was contended by the learned counsel for the petitioner that the Court below has dismissed the private complaint on the ground of consideration of merits and demerits of the case, as contemplated under Section 203 Cr.P.C. 9. Section 203 of the Code of Criminal Procedure deals with Dismissal of complaint, which reads as follows : “If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.” It has been made clear that in a private complaint, the Magistrate has to consider the statements on oath of the complainant and the sworn statement of witnesses and other supporting materials, if any produced by the complainant and if he satisfies that there is no sufficient ground to proceed further, he shall dismiss the complaint. In other words, if the complaint has not been supported by the statements on oath of the complainant and of the witnesses and there is no prima facie material to proceed further, it would be considered only as a vexatious complaint, liable for dismissal. 10. In the instant case, the petitioner has alleged civil transactions between the petitioner and the respondents. According to him, the respondents entered into an agreement with the petitioner and received part of the sale consideration, but failed to execute the sale deeds. According to him, the first respondent herein executed the sale deed in favour of the petitioner. However, on verification, it was found that he had already executed a sale deed in faovur of his wife, the second respondent herein. However, to maintain the private complaint, the petitioner has failed to produce supporting documents to prima facie make out a case and passing of the alleged sale consideration to the respondents and also the subsequent sale deed executed by the first respondent in favour of the second respondent, so as to attract Section 420 IPC. 11. However, to maintain the private complaint, the petitioner has failed to produce supporting documents to prima facie make out a case and passing of the alleged sale consideration to the respondents and also the subsequent sale deed executed by the first respondent in favour of the second respondent, so as to attract Section 420 IPC. 11. Without any supporting documents, the petitioner cannot simply lodge the complaint against the respondents under Section 202 Cr.P.C. Section 202(1) Cr.P.C deals with postponement of issue of process, which reads as follows : “(1) Any Magistrate, on receipt of a complaint of an offence which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, postpone the issue of process against the accused...”, and either inquire into the case himself or direct an investigation to be made by, a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding.” As per Section 202 Cr.P.C., it is only the discretion of the Judicial Magistrate and not the discretion of the complainant. The person approaching the Court and lodging complaint against the accused should prima facie make out a case by producing supporting materials towards the investigation. 12. In the instant case, in order to make out a criminal case of alleged cheating, the petitioner has not even produced any supporting document, in spite of the fact that the respondents have denied the alleged cheating by the respondents. Therefore, I could not find any error or illegality in the impugned order, so as to warrant any interference by this Court. Hence, this Civil Revision case is dismissed. However, it is open to the petitioner to get appropriate remedy through Civil Court, if he is so advised. Revision petition dismissed.