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2018 DIGILAW 3077 (MAD)

H. A. MOHAMED ALI v. SUB INSPECTOR OF POLICE

2018-09-19

G.K.ILANTHIRAIYAN

body2018
JUDGMENT G.K. ILANTHIRAIYAN, J. 1. This quash petition is filed to quash the criminal proceedings in C.C.No.460 of 2010 on the file of the Judicial Magistrate No.2, Dindigul, having been taken cognizance for the alleged offence under Sections 406, 465, 466, 468, 474, 420 and 120(b) of I.P.C., registered in crime No.29 of 2009 on the file of the first respondent police. 2. The case of the prosecution is that the second respondent/defacto complainant lodged a complaint alleging that he has been occupying the premises of the petitioner admeasuring 1600 sq.ft. for the past 10 years as a tenant. While being so, the petitioner offered to sell that premises along with the adjacent site situated in S.No.20/4 admeasuring 6814 sq. ft. at Pallapatti Village, Dindigul Taluk for the sale consideration of Rs. 18,39,780/-. The second respondent agreed to accept the said price offered by the petitioner herein and entered into a sale agreement on 24.11.2008 by payment of Rs. 10 lakhs as an advance. The time fixed for execution of sale within a period of three months from the date of agreement and the sale deed should be executed in favour of the defacto complainant. Thereafter, when the defacto complainant surveyed the said property, he came to understand that the land in which agreement entered between them in S.No.20/4 is not belong to the petitioner and it belongs to one Chinnasamy. Thereby, the petitioner cheated the defacto complainant. Hence, the complaint. On the receipt of the complaint, the Superintendent of Police, Dindigul District forwarded the said complaint to the District Crime Branch, Dindigul for necessary action on the complaint. Even after receipt of the same, the District Crime Branch, Dindigul District did not take any action on the complainant and as such, the defacto complainant filed private complaint before the Judicial Magistrate No.2, Dindigul and sought for direction under Section 156(3) of Cr.P.C. to register a case. The learned Judicial Magistrate No.2, Dindigul was pleased to direct the respondent police to investigate and register a case on the complaint lodged by the defacto complainant. The learned Judicial Magistrate No.2, Dindigul was pleased to direct the respondent police to investigate and register a case on the complaint lodged by the defacto complainant. Thereafter, the respondent police registered the case in crime No.29 of 2009 as against the petitioner and Others for the offences under Sections 406, 465, 466, 474, 420 and 120(b) of I.P.C. The first respondent, after completing the investigation, laid charge sheet before the learned Judicial Magistrate No.2, Dindigul and the learned Judicial Magistrate has also taken cognizance in C.C.No.460 of 2010 for the offences under Sections 406, 465, 466, 468, 474, 420, 120(b) of I.P.C. As against the said criminal proceedings in C.C.No.460 of 2010, the petitioner/A1 filed this quash petition. 3. The learned counsel appearing for the petitioner would raise the following grounds to quash the criminal proceedings: (i) that the defacto complainant preferred a private complaint before the learned Judicial Magistrate No.2, Dindigul and the learned Judicial Magistrate directed the respondent to conduct enquiry under Section 202 of Cr.P.C. However, without even receiving any report, the learned Judicial Magistrate ought not to have directed the respondent to register a case under Section 156(3) of Cr.P.C. Therefore, the entire investigation is vitiated and it is liable to be quashed. (ii)that the entire allegations are civil in nature and the defacto complainant has given criminal colour and file a false complaint as against the petitioner. The ingredients of the offences are not made out as against the petitioner, since the petitioner did not forge any documents and did not create any documents and hence, no offence is made out as alleged by the defacto complainant as against the petitioner. The offence of cheating is also not attracted as against the petitioner and the petitioner did not make any false promise to the complainant so as to deceive any person and fraudulently, dishonestly induced the defacto complainant to deliver any property. Therefore, all the offences are not made out as per the charge against the petitioner. The dispute between the petitioner and the defacto complainant are civil in nature and the present complaint is nothing but malicious prosecution. When the defacto complainant failed to achieve in a civil proceedings, indirectly, he wants to achieve by way of criminal proceedings in a shortcut method. The dispute between the petitioner and the defacto complainant are civil in nature and the present complaint is nothing but malicious prosecution. When the defacto complainant failed to achieve in a civil proceedings, indirectly, he wants to achieve by way of criminal proceedings in a shortcut method. Thus, he prayed for quashment of the entire criminal proceedings in C.C.No.460 of 2010 on the file of the Judicial Magistrate No.2, Dindigul as against the petitioner. 4. Per contra, the learned senior counsel appearing for the second respondent/defacto complainant would submit that the defacto complainant is a tenant under the petitioner in the premises admeasuring 1600 sq.ft. Comprised in S.No.20/5 Pallapatti village for the past 10 years and the premises is a godown. Adjacent to the said godown, the property admeasuring 20 cents comprised in S.No.20/4 of Pallapatti village belongs to accused 5 to 7, who are none other than his own sisters of the petitioners herein and the property comprised in S.No.19/1 admeasuring 15 cents totally 35 cents of property, in which, deducting 4-1/2 cents for common pathway, they sold the remaining 30.5 cents of property to one Chinnappan Servai on 25.10.1996 and registered as document No.2910/96 in the office of the Joint Sub Registrar, Dindigul. He was also issued patta for the said property in Patta No.1285. In turn, the said Chinnappan sold out the said property by way of three sale deeds on 24.04.2000 in favour of Deepa, Chitra and Priya, daughters of Dr.Chinnachamy as documents Nos.1488, 1489 and 1490 of 2000. After the said sale, the accused 5 to 7 have no right or title over the property comprised in S.No.20/4. Even then, the accused 5 to 7, executed sale deed by creating patta No.1286 for the property comprised in S.No.20/4 in favour of the accused 1, 2 and 4 admeasuring 6 cents lands and registered as document No.2911/96. Even after issuing patta No.1286 and documents No.2911/96, instead of 6 cents, it has been shown as 16 cents, in which, again A5 to A7 created documents, as if, A2 sold 1/3 of the said property in favour A3 by way of the sale deed registered as document Nos.711 and 713/99. Further, the third accused, on 10.12.1999 executed another two sale deeds registered as document Nos.3762 and 3763/99 in favour of the first accused. Further, the third accused, on 10.12.1999 executed another two sale deeds registered as document Nos.3762 and 3763/99 in favour of the first accused. Thereafter, on 28.04.2008, the fourth accused executed a sale deed in favour of 8th accused and registered as document No.2905/08 in respect of the property comprised in S.No.20/4. Continuance of the same, again, the 8th accused on 18.09.2008, executed a power of attorney in favour of the first accused. Therefore, the accused 1 to 8 conspired together and connivance each other, without any title or rights over the property comprised in S.No.20/4, Pallapatti village, the first accused falsely convinced that the land comprised in S.No.20/4 admeasuring 16 cents belongs to him and entered into a sale agreement with the defacto complainant for the sale consideration of Rs. 18,39,780/- and in which, he received a sum of Rs. 10 lakhs as advance on the date of agreement. The said agreement was also registered as document No.6140/08 in the office of Sub Registrar, Dindigul, Thereby, A1 to A8 committed the offence and the ingredients of the offence as stated above are attracted as against the accused persons. Further, there are sufficient materials available and there are specific allegations as against all the accused persons and the points raised by the petitioner have to be established only during the trial and as such, the criminal proceedings cannot be quashed at this stage and thus, he prayed for dismissal of the quash petition. 5. The learned Additional Public Prosecutor appearing for the State/first respondent would submit that there are incriminating evidence against all the accused persons to connect them with the charges and all the list of witnesses categorically stated in their statements recorded under Section 161(3) of Cr.P.C., that each of the accused is having specific overt act and this case is not civil in nature and it requires a full-fledged trial to establish the case of the prosecution and therefore, he prayed for dismissal of the quash petition. 6. Heard the learned counsel appearing for the petitioner and the learned Additional Public Prosecutor appearing for the State/first respondent and the learned senior counsel appearing for the second respondent/defacto complainant and also perused the materials placed before this Court. 7. 6. Heard the learned counsel appearing for the petitioner and the learned Additional Public Prosecutor appearing for the State/first respondent and the learned senior counsel appearing for the second respondent/defacto complainant and also perused the materials placed before this Court. 7. Admittedly, the petitioner entered into an agreement for sale with the defacto complainant to sell the land admeasuring 16 cents comprised in S.No.20/4 situated at Pallapatti villlage, Dindigul District and received a sum of Rs. 10 lakhs as an advance. It is seen from the sale agreement dated 24.11.2008, time is an essence of the contract and three months time was fixed to execute the sale deed by the petitioner in favour of the defacto complainant from the date of agreement. Further, the property mentioned in the schedule is that the land comprised in S.No.20/4 admeasuring 6814 sq.ft. and the building constructed in the same survey number and the service electricity connection in S.C.1147 and other machineries are also available. When the defacto complainant surveyed the said property, he came to understand that the property comprised in S.No.20/4 is belong to accused 5 to 7 and they also sold out the same along with other properties in favour of one Chinnappan and in turn, he sold out the same in favour of Deepa, Chitra and Priya, daughters of one Chinnachamy and they were granted patta No.1285. After issuance of patta for the land comprised in S.No.20/4, other accused persons executed sale deeds and finally, to deal with the property, the first accused was given power of attorney on 18.09.2008. On the said power, A1 has executed the sale agreement in favour of the defacto complainant. Therefore, there are materials to connect the petitioner and other accused persons to proceed the trial. There are specific allegations against each of the accused persons connecting the first accused/petitioner herein and as such, the grounds raised by the petitioner has to be established only during the trial. 8. Further, the defacto complainant filed the suit in O.S.No.85 of 2011 on the file of the District Munsif, Dindigul for specific performance on the basis of the sale agreement dated 24.11.2008 against the petitioner and another for part of the property comprised in S.No.20/4 and the property comprised in S.No.20/5 admeasuring 3815 sq.ft of the property to be executed by way of sale deed in favour of the defacto complainant. Since the petitioner has no title or right over the property comprised in S.No.20/4, the defacto complainant asked for the relief of specific performance in respect of the property comprised in S.No.20/4 alternatively. The said suit was dismissed on the ground that the agreement for sale entered in respect of the property comprised in S.No.20/4 and hence, the relief of specific performance cannot be asked for the property comprised in S.No.20/5. Further, the trial Court found that the property mentioned in the agreement viz., comprised in S.No.20/4 with building are not proved by the defendant as he is the owner of the property. Therefore, there are materials to proceed the trial as against the petitioner/A1. Therefore, the charge sheet cannot be quashed at its threshold. 9. The learned counsel appearing for the petitioner cited the judgment Inder Mohan Goswami V. State Uttaranchal, (2007) 5 CTC 614, wherein, the Hon'ble Supreme Court has held as follows: "41.On a reading of the aforesaid section, it is manifest that in the definition there are two separate classes of acts which the person deceived may be induced to do. In the first class of acts he may be induced fraudulently or dishonestly to deliver property to any person. The second class of acts is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but need not be fraudulent or dishonest. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had a fraudulent or dishonest intention at the time of making the promise. From his mere failure to subsequently keep a promise, one cannot presume that he all along had a culpable intention to break the promise from the beginning." Here, in this case, there are ingredients and clinching materials to connect the petitioner to proceed with the trial. Further, the ingredients to attract the offence alleged by the prosecution are made out from the materials and statement of the list of witnesses. Therefore, the said judgment is not applicable to the present case on hand. 10. Further, the ingredients to attract the offence alleged by the prosecution are made out from the materials and statement of the list of witnesses. Therefore, the said judgment is not applicable to the present case on hand. 10. He also relied on the decision of the Hon'ble Supreme Court Thermax Ltd. V. K.M.John, (2012) 1 MLJ(Cri) 393 and submitted that with regard to the ingredients of the offence under Sections 420, 467 and 120(b) of I.P.C. are not made out as against the petitioner. The relevant portion of the said decision is extracted herein: "29.The entire analysis of the complaints with reference to the principles enunciated above and the ingredients of Sections 405, 406, 420 read with Section 34 IPC clearly show that there was inordinate delay and laches, the complaint itself is inherently improbable contains the flavour of civil nature and taking note of the closure of earlier three complaints that too after thorough investigation by the police, we are of the view that the Magistrate committed a grave error in calling for a report under Section 156(3) of the Code from the Crime Branch, Pune. In view of those infirmities and in the light of Section 482 of the Code, the High Court ought to have quashed those proceedings to safeguard the rights of the appellants. For these reasons, the order passed by the Judicial Magistrate First Class, Pimpri in CC No. 12 of 2002 on 20.08.2007 and the judgment of the High Court dated 11.01.2008 in Criminal Writ Petition No. 1622 of 2007 are set aside. The complaint filed by Respondent No.1 herein is quashed." Here, in this case, now, the stage has been crossed and the respondent laid charge sheet and the trial Court having been taken cognizance in C.C.No.460 of 2010 as against the petitioner and Others and hence, the dictum laid down by the Apex Court is also not applicable to the present case on hand. 11. The learned senior counsel appearing for the second respondent relied on the decision of the Apex Court Radhey Shyam Khemka and another V. State of Bihar, (1993) 3 SCC 54 , wherein, the Apex court has held that while exercising power under Section 482 of Cr.P.C., the High Court should not usurp the jurisdiction of the Court. The relevant portion of the said decision would read as follows: "8. The relevant portion of the said decision would read as follows: "8. The complaint made by the Deputy Secretary to the Government of India to the CBI mentions different circumstances to show that the appellants did not intend to carry on any business. In spite of the rejection of the application by the Stock Exchange, Calcutta, they retained the share moneys of the applicants with dishonest intention. Those allegations were investigated by the CBI and ultimately chargesheet has been submitted. On basis of that chargesheet cognizance has been taken. In such a situation the quashing of the prosecution pending against the appellants only on the ground that it was open to the applicants for shares to take recourse to the provisions of the Companies Act, cannot be accepted. It is a futile attempt on the part of the appellants, to close the chapter before it has unfolded itself. It will be for the trial court to examine whether on the materials produced on behalf of the prosecution it is established that the appellants had issued the prospectus inviting applications in respect of shares of the Company aforesaid with a dishonest intention, or having received the moneys from the applicants they had dishonestly retained or misappropriated the same. That exercise cannot be performed either by the High Court or by this Court. If accepting the allegations made and charges levelled on their face value, the Court had come to conclusion that no offence under the Penal Codewas disclosed the matter would have been different. this Court has repeatedly pointed out that the High Court should not while exercising power under Section 482 of the Code usurp the jurisdiction, of the trial court. The power under Section 482 of the Code has been vested in the High Court to quash a prosecution which amounts to abuse of the process of the court. But that power cannot be exercised by the High Court to hold a parallel trial, only on basis of the statements and documents collected during investigation or enquiry, for purpose of expressing an opinion whether the accused concerned is likely to be punished if the trial is allowed to proceed. But that power cannot be exercised by the High Court to hold a parallel trial, only on basis of the statements and documents collected during investigation or enquiry, for purpose of expressing an opinion whether the accused concerned is likely to be punished if the trial is allowed to proceed. " Considering the said decision, this Court is of the view that when there are materials to proceed with the trial against the petitioner, this Court is not inclined to quash the proceedings by exercising the powers under Section 482 of Cr.P.C. 12. He also relied on by another decision of the Apex Court Vinod Raghuvanshi V. Ajay Arora and Others, (2013) 4 SCC(Criminal) 792, wherein, the Apex Court has held as follows: "19.It is a settled legal proposition that while considering the case for quashing of the criminal proceedings the court should not "kill a still born child", and appropriate prosecution should not be stifled unless there are compelling circumstances to do so. An investigation should not be shut out at the threshold if the allegations have some substance. When a prosecution at the initial stage is to be quashed, the test to be applied by the court is whether the uncontroverted allegations as made, prima facie establish the offence. At this stage neither the court can embark upon an inquiry, whether the allegations in the complaint are likely to be established by evidence or nor the court should judge the probability, reliability or genuineness of the allegations made therein. More so, the charge sheet filed or charges framed at the initial stage can be altered/amended or a charge can be added at the subsequent stage, after the evidence is adduced in view of the provisions of Section 216 Cr.P.C. So, the order passed even by the High Court or this Court is subject to the order which would be passed by the trial court at a later stage." In the above said decision, the Hon'ble Apex Court has held that this Court should not kill a still born child and appropriate prosecution should not be stifled, unless there are compelling circumstances to do so. 13. As stated above, the prosecution witnesses have to be tested during the trial and at this stage, the criminal proceedings against the petitioner cannot be quashed. 14. In view of the above discussion, this criminal original petition is dismissed. 13. As stated above, the prosecution witnesses have to be tested during the trial and at this stage, the criminal proceedings against the petitioner cannot be quashed. 14. In view of the above discussion, this criminal original petition is dismissed. Consequently, connected miscellaneous petitions are also dismissed.