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2013 DIGILAW 2943 (MAD)

Sivakami v. S. Kumaravadivel

2013-08-14

R.SUBBIAH

body2013
JUDGMENT 1. Seeking to quash the proceedings in C.C.No.753 of 2010 pending on the file of Judicial Magistrate Court No.III, Erode based on the complaint given by the respondent herein, the petitioners have come forward with the present petition. 2. Petitioners herein are A-1 and A-2 in the said complaint. The allegations in the complaint are as follows: Respondent is in possession and enjoyment of the property measuring to an extent of 1.13 acres comprised in R.S.No.17/2A, Suriyampalayam Village, Erode District. A1 and A2, with an intention to grab the land, created a forged sale agreement in the name of A1. Hence, the de-facto complainant herein filed a suit in O.S.No.537 of 2008 before the Principal Sub Court, Erode, against A1 and A2 and four others for a declaration that the sale deed dated 10.07.2007 bearing Doc.No.2805 of 2007 on the file of SRO., Bhavani, purported to have been executed by defendants 3 to 6 in favour of 1st petitioner/A1 is not valid in law and is not binding on the respondent herein. After filing the said suit, the respondent also filed an application on 20.01.2009 to Sub Registrar, Tutirocin under Right to Information Act to find out whether the stamp paper bearing No.08 AA 953256 dated 01.12.2006 said to have been purchased from one Pichiah, Stamp Vendor of Ottapidaram, is a genuine document or not, on which the sale agreement was prepared in favour of A1. For this, the respondent received a reply from the District Registrar, Tuticorin that the said stamp paper was not sold by the stamp vendor Pichiah to A-1. Similarly, from the above information obtained from the District Registrar, Tuticorin, it is very clear that the accused persons had not at all purchased the stamp paper from the said stamp vendor. Hence, the respondent lodged a complaint on 02.03.2009 to the Sithode Police Station as against the petitioners herein for creating a forged document; but no action was taken on the said complaint. Under such circumstances, the respondent filed Crl.O.P.No.19060 of 2009 before this Court for a direction to the police to initiate action against the petitioners. But this Court, by order, dated 30.09.2009, directed the respondent to file a private complaint against the accused persons before the concerned court. Under such circumstances, the respondent filed Crl.O.P.No.19060 of 2009 before this Court for a direction to the police to initiate action against the petitioners. But this Court, by order, dated 30.09.2009, directed the respondent to file a private complaint against the accused persons before the concerned court. Accordingly, the respondent filed C.C.No.753 of 2010 before the Judicial Magistrate Court No.III, Erode against the accused persons for the offences under sections 465, 467, 471 and 420 IPC. Hence, the present petition has been filed by A1 and A2 to quash the said proceedings. 3. It is the submission of the learned counsel for the petitioners that the respondent herein filed O.S.No.537 of 2008 before the Sub Court, Erode, claiming ownership of the property measuring to an extent of 1.13 acres comprised in S.No.17/2A, Suriyampalayam Village, Erode District. Originally, the said property belonged to late L.Muthu. who purchased the same on 23.12.1993 out of his own earnings. Subsequently, the said Muthu along with A3 to A5 in the complaint, viz., Eswari, Kuppusamy and Sureshkumar, who are the legal heirs of said L.Muthu, entered into a sale agreement dated 01.12.2006 with the first petitioner for a sum of Rs.1.50 lakhs. Subsequently, the said Muthu along with A3 to A5 executed a sale deed dated 10.07.2007 in favour of the 1st petitioner, who is A1, in respect of the same property. While so, the respondent herein claimed that the said land, even prior to the execution of sale deed dated 10.07.2007 in favour of the 1st petitioner herein by the said Muthu and A3 to A5, was sold by A3 Muthu in favour of one Rajendra Kumar; therefore, the sale deed dated 10.07.2007 executed in favour of the 1st petitioner herein by the said Muthu and A3 to A5, who are not the owners of the property, is not valid and only the said Rajendra Kumar was the absolute owner of the property, from whom, the respondent had purchased the property on 03.12.2007; therefore, according to the respondent, he had purchased the property from the original owner. 4. The learned counsel for the petitioner further submitted that the case of the respondent is purely civil in nature because already a civil suit is pending between the parties in O.S.537 of 2008 initiated by the respondent. The issue with regard to the ownership is yet to be decided in the civil suit. 4. The learned counsel for the petitioner further submitted that the case of the respondent is purely civil in nature because already a civil suit is pending between the parties in O.S.537 of 2008 initiated by the respondent. The issue with regard to the ownership is yet to be decided in the civil suit. While so, the respondent filed a false complaint on the same set of allegations. Therefore, the complaint is not maintainable and the same is liable to be quashed. In support of his contention, the learned counsel relied on the decisions reported in (2009) 7 SCC 495 (DEVENDRA AND OTHERS .vs. STATE OF UTTAR PRADESH AND ANOTHER) and (2009) 8 SCC 751 (MOHD. IBRAHIM .vs. STATE OF BIHAR) and submitted that if there is a flavour of civil nature, the same cannot be agitated in the form of criminal proceeding. Criminal Courts should ensure that criminal proceedings are not misused for settling scores or pressurising parties to settle civil dispute. 5. Per contra, the learned counsel appearing for the respondent submitted that originally the said property was purchased on 23.12.1993 by late Muthu, who sold the same to Rajendra Kumar on 18.06.2007. Thereafter, again, on 10.07.2007, the said Muthu and A3 to A5, by suppressing the earlier sale, sold the same property to A1 and A2 by a registered sale deed dated 10.07.2007, on which date, they are not the owners of the property and only the said Rajendra Kumar is the owner of the property. The respondent had purchased the property from the original owner Rajendra Kumar on 03.12.2007 for a valid sale consideration of Rs.3.50 lakhs. Hence, the respondent has filed the civil suit in O.S.No.537 of 2008 on the file of Principal Sub Court, Erode against the petitioners herein and others. The said suit was decreed in favour of the respondent on 19.03.2012 stating that the sale deed in favour of A1 is null and void. In the said suit, the respondent had taken out an application in I.A.No.1459 of 2008 for temporary injunction, wherein the petitioners produced the sale agreement dated 01.12.2006 in support of sale deed executed by Muthu and others in favour of the 1st petitioner. A perusal of the said sale agreement would show that the stamp paper was purchased from Ottapidaram, Tuticorin District, on 01.12.2006, which is 350 kms.away from Bhavani. A perusal of the said sale agreement would show that the stamp paper was purchased from Ottapidaram, Tuticorin District, on 01.12.2006, which is 350 kms.away from Bhavani. But, on the very same date, A3 to A6 executed a sale agreement in favour of A1 in Bhavani. Therefore, the learned Principal Sub Judge, Erode, has clearly observed that the sale deed is a false and created document. The learned counsel for the respondent further submitted that the respondent sent a letter to the District Registrar and received information under the RTI Act dated 13.02.2009, from which reply, the respondent came to know that the stamp paper bearing No.08 AA 053256 said to have been purchased from Pichiah, the stamp vendor of Ottapidaram, was not at all sold by the said vendor to the 1st accused. Similarly, from the information obtained from the District Registrar, Ottapidaram, the respondent came to know that the accused had not at all purchased the stamp paper from the stamp vendor. The District Registrar has also informed by letter dated 08.03.2010 in reply to the 1st petitioner's request under RTI Act that the stamp paper bearing Sl.No.12733 valuing for a sum of Rs.1,000/- was sold by the stamp vendor Pichiah to one Thiruselvi as early as on 27.06.2006 i.e. much earlier to the date mentioned in the stamp papers on which sale agreement was prepared. Therefore, based on the information received from the Right to Information Act, the present complaint was filed and hence, it is incorrect to state that the issue involved in the civil suit and the complaint is one and the same. The respondent's counsel has also relied upon a judgment reported in (2010)1 MLJ (Crl) 807 (R.GOVINDARAJ .vs. STATE) in support of his contention that the availability of civil remedy and initiation of proceedings in civil court is not a bar for seeking criminal prosecution of offendor and pendency of parallel proceedings in Civil Court, lodging of complaint and settling criminal law in motion shall not amount to abuse of process of law. 6. Heard the learned counsel for both sides and perused the materials available on record. 7. Main submission of the learned counsel for the petitioners is that the respondent has already initiated a civil suit claiming right over the property stating that the property purchased by the petitioners from one late Muthu and A3 to A5 is not valid. 6. Heard the learned counsel for both sides and perused the materials available on record. 7. Main submission of the learned counsel for the petitioners is that the respondent has already initiated a civil suit claiming right over the property stating that the property purchased by the petitioners from one late Muthu and A3 to A5 is not valid. On the same set of allegations, the respondent has filed the present complaint stating that the property which was sold by Muthu and A3 to A5 to the petitioners has already been sold to one Rajendra Kumar on 18.06.2007 itself and the respondent had purchased the property from the said Rajendra Kumar. According to the petitioners, this allegation would not constitute any cognizable offence. Further, it is the case of the petitioners that when a civil suit is pending, the same cannot be agitated in a forum of criminal proceedings. 8. Absolutely, there is no quarrel in accepting the said principle. But, in the instant case, the complaint was filed with some other serious allegations stating that the sale agreement dated 01.12.2006 was created and forged by the accused persons with an intention to grab the property, which was sold to the respondent by the true owner. In support of his contention, the respondent has also obtained information through the RTI Act from the District Registrar, Tuticorin. The relevant allegations in the complaint are as follows: “TAMIL” 9. From the said allegations, it is clear that there is a specific allegation that the petitioners have created a false document in order to grab the property. Hence, the private complaint is maintainable and pendency of the civil suit is not a bar for seeking criminal prosecution of offender. Whether a civil suit acts as a bar to the criminal prosecution or not has to be decided based on the facts and circumstances of each case. In the instant case, on considering the allegations, I am of the opinion that the continuation of civil proceedings before the civil court would not act as a bar for initiating criminal proceedings for the offence of creating fake documents. In the instant case, on considering the allegations, I am of the opinion that the continuation of civil proceedings before the civil court would not act as a bar for initiating criminal proceedings for the offence of creating fake documents. Therefore, I find that there is a prima facie case to constitute an offence against the petitioners and whether the allegations levelled in the complaint are true or not has to be decided only at the time of trial and it cannot be done in a petition filed under section 482 Cr.P.C. Under such circumstances, I am of the opinion that it is not a fit case in which this Court can exercise its inherent power for quashing the private complaint filed by the respondent herein and hence, the petition is liable to be dismissed. For the reasons stated above, the criminal original petition stands dismissed. Consequently, connected M.Ps. are closed.