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2014 DIGILAW 2422 (MAD)

J. N. Chandrasekaran v. S. P. Murugesan

2014-08-06

P.R.SHIVAKUMAR

body2014
Judgment 1. The submissions made on behalf of the revision petitioner and on behalf of the contesting respondent are heard. 2. The petitioner seems to have approached the Police with an allegation that the fifth and sixth respondents, who were maintaining the property of the first respondent, entered into an agreement for sale of property of the first respondent for a sale consideration of Rs.24,70,800/-and received a sum of Rs.2,60,000/-as part payment of sale consideration and that thereafter, though the petitioner was prepared to complete the transaction, the first respondent sold the property to the seventh respondent for a higher price, but, at the same time, evaded repayment of the amount received by the fifth and sixth respondents from the revision petitioner. The Police Officer seems to have rightly declined to entertain the complaint, as it revealed only a civil dispute. Thereafter, the petitioner approached the Judicial Magistrate, Thuraiyur, with a private complaint, which was returned by the learned Judicial Magistrate, Thuraiyur. 3. As against the order returning the complaint, without considering the complaint, as per the procedure contemplated under Section 200 Cr.P.C., the petitioner preferred a Criminal Original Petition viz., Crl.O.P.(MD)No.7103 of 2010 on the file of this Court. The Hon'ble Ms. Justice R.Mala, who heard the petition, held that the Magistrate ought to have either adopted the procedure contemplated under Section 200 Cr.P.C. or referred the complaint under Section 156 (3) Cr.P.C. to the Police. Since the learned Judicial Magistrate did not follow any of the said procedure, the learned Single Judge chose to allow the Criminal Original Petition and directed the Judicial Magistrate to consider the complaint under Section 200 Cr.P.C. 4. Accordingly, the learned Judicial Magistrate, Thuraiyur, had taken on file the complaint, as Crl.M.P.No.85 of 2011 and recorded the sworn statement of the revision petitioner and that of one Ramasamy, produced as a witness by the revision petitioner. Thereafter, the learned Judicial Magistrate considered the complaint, sworn statements of the complainant and the witness, and the documents produced by him, under Section 202 Cr.P.C., in order to take a decision whether the process can be issued against the respondents herein. Upon such consideration, the learned Judicial Magistrate came to the conclusion that the averments made in the complaint and the particulars found in the sworn statement revealed the fact that a civil dispute was sought to be given a criminal colour. Upon such consideration, the learned Judicial Magistrate came to the conclusion that the averments made in the complaint and the particulars found in the sworn statement revealed the fact that a civil dispute was sought to be given a criminal colour. Consequently, the learned Judicial Magistrate arrived at a conclusion that there was no prima facie material for proceeding against the respondents. Accordingly, the learned Judicial Magistrate dismissed the complaint under Section 203 Cr.P.C., by order dated 06.01.2011, which is impugned in the present Criminal Revision. 5. The learned Judicial Magistrate in the impugned order has discussed the facts and other materials produced before him and assigned reasons for arriving at a conclusion that a civil dispute was sought to be given a criminal colour and hence, there was no prima facie material for launching a prosecution against the respondents herein. The only grievance of the petitioner is that the agreement entered into by the respondents 5 & 6 for the sale of the property of the first respondent was not honoured by the first respondent and on the other hand, the first respondent chose to sell the property to the seventh respondent and that even after such sale to the seventh respondent, the first respondent had not chosen to return the advance amount paid by the revision petitioner to the respondents 5 & 6. Whether the respondents 5 & 6 were authorised by the first respondent to negotiate for the sale of his property and enter into an agreement on behalf of the first respondent is a debatable issue. Even assuming that such an agreement was entered into with the authority of the first respondent, whether the revision petitioner is entitled to the relief of specific performance or for the refund of the advance amount with or without interest, is also an issue triable in a civil case. 6. As the only grievance made by the petitioner in his complaint is that the amount paid by him as advance was not refunded, the remedy available to him was to approach the Civil Court and seek necessary relief either for specific performance or for refund of advance amount with or without interest and/or damages. 6. As the only grievance made by the petitioner in his complaint is that the amount paid by him as advance was not refunded, the remedy available to him was to approach the Civil Court and seek necessary relief either for specific performance or for refund of advance amount with or without interest and/or damages. Not inclined to do it, the petitioner wanted to adopt a short cut method by approaching the Police and preferring a criminal complaint and thereby made an attempt to convert a purely civil issue into a criminal offence. The said attempt can, without any hesitation, be stamped as an attempt of abuse of process of Court. 7. In view of the above discussion, this Court does have no hesitation in coming to the conclusion that the learned Judicial Magistrate, Thuraiyur, committed no error or mistake in dismissing the complaint under Section 203 Cr.P.C. and that this Court cannot interfere with the same in exercise of its power of revision. There is no merit in the revision and the same deserves to be dismissed. 8. In the result, the criminal revision case is dismissed. Consequently, connected miscellaneous petition is also dismissed.