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2021 DIGILAW 1807 (MAD)

K. Gunasekari v. State

2021-06-28

P.VELMURUGAN

body2021
JUDGMENT : PRAYER: Criminal Appeals filed against the judgment passed in S.C.No.12 of 2016 on the file of Principal District and Sessions Judge, Thiruvarur, dated 06.11.2019. Accused filed Crl.A.No.847 of 2019 against the conviction and sentence for the offence under Sections 420 and 465 IPC. Defacto complainant has filed criminal Appeal Nos.875 of 2019 and 114 of 2020 against the very same judgment being Crl.A.No.875 of 2019 is filed for enhancement of the sentence awarded under section 420 IPC and Crl.A.No.114 of 2020 filed against the acquittal for the offence under Sections 451 IPC and Section 3(1) of TNPPDL Act, 1992. 2. Since all the above criminal appeals arise out of the same judgment, the criminal appeals are heard together and disposed of by the common judgment. 3. For the sake of convenience, the ranking of the parties is mentioned herein as per the ranking of the trial court. 4. The respondent Police registered the case in Crime No.67 of 2012 for the offence under Sections 420, 448, 379 IPC and Section 3(1) of TNPPDL Act, 1992. After investigation, they laid charge sheet before the Judicial Magistrate, Thiruthuraipoondi. After completing the formalities, the case was taken on file in P.R.C.No.47 of 2015. Since the offences were triable by the Court of Session, the learned Magistrate committed the case to the Principal District and Sessions Judge, Thiruvarur. The learned Principal Sessions Judge, after completing the formalities, taken the case on file in S.C.No.12 of 2016. After completing the formalities, the Principal Sessions Judge found that prima facie case is made out against the accused, framed charges against him for the offences under Sections 465, 420, 451 IPC and Section 3(1) of TNPPDL Act, 1992. 5. After framing of charges, on the side of prosecution, as many as 11 witnesses were examined as P.W.1 to 11, 27 documents were marked as Ex.P.1 to Ex.P.27 and 4 Material Objects were marked as M.O.1 to M.O.4. After completing the evidence on the side of the prosecution witnesses, incriminating circumstances culled out from the evidence of the prosecution side were put before the accused. He denied the same as false and pleaded not guilty. On the side of defence, the accused was examined as D.W.1 and 3 documents were marked as Ex.D.1 to Ex.D.3. 6. After completing the evidence on the side of the prosecution witnesses, incriminating circumstances culled out from the evidence of the prosecution side were put before the accused. He denied the same as false and pleaded not guilty. On the side of defence, the accused was examined as D.W.1 and 3 documents were marked as Ex.D.1 to Ex.D.3. 6. After completing the trial and on hearing of arguments advanced on both sides and considering the materials placed before it, the trial Judge acquitted the accused for the offence under Sections 451 IPC and Section 3(1) of TNPPDL Act. However, convicted the accused for the offence under Sections 420 and 465 IPC. For the offence under Section 420 IPC, the accused was convicted and sentenced to undergo 3 years rigorous imprisonment and fine of Rs.5000/-, in default to undergo rigorous imprisonment for three months; for the offence under section 465 IPC, accused was convicted and sentenced to undergo two years rigorous imprisonment and fine of Rs.5000/-, in default to undergo rigorous imprisonment for six weeks. Challenging the said conviction and sentence passed by the trial court, the accused has preferred Crl.A.No.847 of 2019 and against the order of acquittal for the offence under Section 451 IPC and Section 3(1) of TNPPDL Act, 1992, defacto complainant has filed Criminal Appeal No.114 of 2020. Further the defacto complainant also filed Crl.A.No.875 of 2019 for enhancement of sentence for offence under section 420 IPC. 7. Mr.Sankarasubbu, learned counsel for the appellant in Crl.A.No.847 of 2019 would submit that there is a delay in filing the complaint and also registering the FIR. The occurrence is alleged to have taken place on 16.11.2011. Complaint was given only on 17.11.2011 i.e., FIR was registered only on 11.02.2012. The said delay was not properly explained and the same vitiates the case of the prosecution. P.W.1 defacto complainant is not an eye witness and therefore, the conviction and sentence based on his evidence is legally not sustainable. P.W.6 is the owner of the property. He sold the property to the accused by sale deed dated 02.11.2011. The defacto complainant was not in possession and enjoyment of the disputed property on the date of complaint. The judgment in O.S.No.97 of 2011 Ex.D.2 itself prove the same. The case is based on the civil dispute. In order to grab the property, the defacto complainant made a complaint before the Police. The defacto complainant was not in possession and enjoyment of the disputed property on the date of complaint. The judgment in O.S.No.97 of 2011 Ex.D.2 itself prove the same. The case is based on the civil dispute. In order to grab the property, the defacto complainant made a complaint before the Police. The respondent police given the criminal colour to the civil dispute. The sale deed executed by P.W.6 is not denied. P.W.6 himself stated that he executed the sale deed in favour of the accused. However, he has stated that by threatening and coercion and by intimidation, he executed the sale deed. Admittedly, sale deed was executed in the presence of Sub Registrar and P.W.6 has not given any complaint against the accused that he cheated him and forced him to execute the sale deed. When the sale deed executed in the Sub Registrar office in the presence of Sub Registrar, the document is said to have been genuine, if otherwise proved. Therefore, the Executor has to disprove it otherwise. Even assuming that the defacto complaint has no right to execute the sale deed, the defacto complainant filed suit in O.S.No.97 of 2011 on the file of District Munsif Court, Thiruthuraipoondi in the year 2011 and it was dismissed by the District Munsif, in the year 2017 vide judgment dated 07.10.2016. Ex.D.1 clearly shows that the District Munsif has not accepted the plea of the defacto complainant and dismissed the suit filed by the defacto complainant who also filed appeal before the Subordinate Judge, Mannarkudi and the same is pending. Therefore, the prosecution has not proved its case beyond all reasonable doubts. The learned trial Judge failed to appreciate the evidence of D.W.1 and the document Ex.D.1- judgment of the District Munsif court, Thiruthuraipoondi in the suit in O.S.No.97 of 2011. The benefit of doubt should have been extended to the accused in all the charges and when the trial Court acquitted for the offence under Section 451 IPC and for offence under Section 3(1) of TNPPDL Act, the trial court ought to have acquitted the accused for the offence under Sections 420 and 465 IPC also. The appeal for enhancement of the punishment awarded for offence u/s.420 IPC is not sustainable. P.W.6 is not a Layman or an illiterate person. The appeal for enhancement of the punishment awarded for offence u/s.420 IPC is not sustainable. P.W.6 is not a Layman or an illiterate person. He is a literate and studied, B.E., M.E., M.B.A. and was working as Engineer in Water Supply and Sewerage Board. He has admitted that he went to the Sub Registrar Office and in the presence of Sub Registrar, executed the sale deed. Subsequently, he has not filed any complaint and therefore, the conviction and sentence passed by the trial judge failed to appreciate the evidence of D.W.1 as well as P.W.6 and therefore, the judgment of the trial court is liable to be set aside. Defacto complainant and P.W.6 colluded to each other in order to defeat the right of the accused, filed the complaint. 8. The learned counsel for defacto complainant would submit that the property originally belongs to the father of the defacto complainant one Subramanian and executed Will in favour of the defacto complainant and gave life interest to P.W.6. The brother of the defacto complainant and the accused taking advantage of the fact that P.W.6 is a drunkard, obtained the sale deed knowing fully that P.W.6 has no right to execute the sale deed in favour of the accused. He admitted that he has not produced any encumbrance certificate. Though the sale deed is alleged to have executed by P.W.6 in favour of the accused and P.W.6 has got right over the property through Partition deed, the accused has not produced either the partition deed or encumbrance certificate. Further the accused knowing fully well that the brother of the defacto complainant has no right over the property, in order to cheat the defacto complainant, obtained the sale deed by undue influence and on mis representation. P.W.6 also subsequently surrendered his life interest in respect of the defacto complainant. The defacto complainant changed the patta, chitta adangal stands in the name of the defacto complainant. Further, the accused tried to interfere with the peaceful possession and enjoyment of the property and hence, the defacto complainant herein, filed O.S.No.97 of 2011 and subsequently, the accused demolished the superstructure and therefore, she has filed the complaint before the respondent police. After investigating the matter, police filed charge sheet. Further, the accused tried to interfere with the peaceful possession and enjoyment of the property and hence, the defacto complainant herein, filed O.S.No.97 of 2011 and subsequently, the accused demolished the superstructure and therefore, she has filed the complaint before the respondent police. After investigating the matter, police filed charge sheet. Though the trial court found that the accused was guilty for offence under Section 465 and 420 IPC, and convicted the accused for the offence under Section 420 IPC. The maximum punishment prescribed for the offence under Section 420 IPC is 7 years and also liable for fine, however, the trial Judge only imposed the sentence of 3 years. Though there is evidence and the prosecution established that the accused damaged the property, the trial court failed to appreciate the evidence of P.Ws. 2 to 5 and wrongly acquitted the accused for the offence under Section 451 IPC and Section 3(1) of TNPPDL Act. Therefore, the defacto complainant has filed two appeals one, for enhancement of the sentence for offence under section 420 IPC and other is against the acquittal for the offence under Section 451 IPC and Section 3(1) of TNPPDL Act. The learned trial Judge failed to appreciate the evidence of P.W.1 to 5 and wrongly acquitted the accused. Therefore, the appeal filed by the accused has to be dismissed and the appeals filed by the defacto complainant have to be allowed and the accused has to be convicted for all the charges and also to be awarded maximum punishment. 9. The learned Government Advocate (Crl.side) would submit that the delay has been properly explained and the prosecution established its case. When P.W.6 has no right in the property, the accused knowing fully well about the same, in order to defraud the rights of the defacto complainant, obtained sale deed from P.W.6, by threat, coercion and misrepresentation, taking advantage of the drunken condition of P.W.6. Further all the documentary evidence produced by the prosecution, clearly shows that the defacto complainant has got absolute right in the property but P.W.6 has no right in the property. The accused obtained sale deed by fraud and cheated P.W.6. Therefore, the prosecution has proved its case beyond reasonable doubt through P.W.1 to 5. Therefore, there is no merit in the appeal filed by the accused and the prosecution established the case filed by the defacto complainant. The accused obtained sale deed by fraud and cheated P.W.6. Therefore, the prosecution has proved its case beyond reasonable doubt through P.W.1 to 5. Therefore, there is no merit in the appeal filed by the accused and the prosecution established the case filed by the defacto complainant. Therefore, the appeal filed by the accused is liable to be dismissed. 10. Heard and perused the records. 11. The case of the prosecution is that P.W.1 defacto complainant lodged complaint against the accused alleging that the accused defrauded defacto complainant and by threat and coercion P.W.6 who had only life interest in the property, the accused purchased vide sale deed dated 02.11.2011 and subsequently caused damages to the property and hence complaint was lodged by the defacto complainant. Therefore, against the accused, FIR has been registered and charge sheet filed before the Judicial Magistrate, Thiruthuraipoondi. After committal, based on the charge sheet, charges framed against the accused for offences under Section 465, 451 and 420 IPC and section 3(1) of TNPPDL Act, 1992. 12. The appellate court is the fact finding court. It has to reappreciate entire evidence to give its independent finding and accordingly the entire evidence placed on record is carefully perused. 13. Admittedly, the property in dispute originally belongs to the father of the defacto complainant and P.W.6 Chandra Mouli. The father of the victim is said to have executed Will in favour of the defacto complainant on 26.07.2006 in which the life interest was given to P.W.6 Chandra Mouli brother of the defacto complainant. The said Will was marked as Ex.P.8 which clearly shows that Chandra Mouli was given life estate. Subsequently, after the execution of the Will, the father of the defacto complainant Subramaniam died on 17.06.2010 leaving behind his daughter- defacto complainant and one Krishnan and P.W.6. Legal Heir Certificate was also marked as Ex.P.10. Subsequently, P.w.6 Chandramouli executed a surrender deed in favour of the defacto complainant on 09.11.2011 and patta was also transferred in the name of the defacto complainant. Ex.P.11 shows that the patta Transfer order, Town Survey Register Ex.P.12, Extract of Chitta Ex.P.13 clearly show that the property stands in the name of defacto complainant. However, before executing the surrender deed by P.W.6 on 09.11.2011, P.W.6 executed the sale deed in favour of the accused on 12.11.2011. Ex.P.11 shows that the patta Transfer order, Town Survey Register Ex.P.12, Extract of Chitta Ex.P.13 clearly show that the property stands in the name of defacto complainant. However, before executing the surrender deed by P.W.6 on 09.11.2011, P.W.6 executed the sale deed in favour of the accused on 12.11.2011. Though according to the prosecution, P.W.6 Chandra Mouli has no right to execute the sale deed in favour of the accused, as per Ex.P.8 Will, he has got only life interest and he has no absolute right, he has no right to execute the sale deed in favour of the accused. Therefore, the defacto complainant is the absolute owner of the property and the accused suppressed all the facts knowing fully well that P.W.6 has no right to execute the sale deed in favour of anyone else and despite that he executed sale deed in favour of the accused. The evidence of P.W.1 – defacto complainant and the evidence of P.W.6 the brother of the defacto complainant shows that P.W.6 has no right. Though the prosecution has stated that the accused has not filed the encumbrance certificate as well as Partition deed, the parent document as mentioned in the sale deed, said to have been executed by P.W.6 Chandramouli in favour of the accused. Further, evidence of P.W.7 stated that he was a graduate and he is B.E., M.E., MBA and he is working as an Engineer. But he has stated that the accused threatened him to kill and took him to the Sub Registrar Office and got the sale deed. Subsequently, on 09.11.2009, he executed a surrender deed in favour of the defacto complainant, which was marked as Ex.P.14 and the defacto complainant also filed the suit in O.S.No.97 of 2011 on the file of the District Munsif Court, Thiruthuraipoondi in which P.W.6 brother of the defacto complainant was shown as the defendant and independently engaged a counsel and filed a written statement, which clearly shows that P.W.6 was not only a Government employee and he is attending the office and also he engaged the counsel to appear on behalf of him in the civil suit and not under the control of the accused and there is no evidence to show that P.W.6 was totally under the control of the accused. Further, he did not file any complaint against the accused by stating that the accused threatened and obtained sale deed by coercion and under influence and he cheated him. Therefore, the evidence of P.W.6 cannot be accepted as genuine one because he is highly educated as well as employed in the Government Department and he was attending the duties in the office at the relevant point of time. 14. A reading of the complaint filed by the defacto complainant in Ex.P.16 shows that she has filed the suit for bare injunction in the year 2011 which came to be dismissed on 07.10.2016 and the District Munsif, Thiruthuraipoondi found that the defacto complainant has not proved the case. She was in possession and enjoyment of the disputed property and therefore, the Suit was dismissed and subsequently, the defacto complainant also filed the appeal before the Principal Sessions Judge, Mannargudi in A.S.No.55 of 2016 and the civil suit was pending from the year 2011. In 2016, it was dismissed giving the finding that the defacto complainant was not in possession and enjoyment of the property. However, the evidence of P.W.1 shows that he is not the eyewitness for the occurrence for the offence under Section 451 and 3(1) of TNPPDL Act and the evidence of P.Ws.2 to 5 are not trustworthy and there are contradictions. Further they have stated that they have damaged the property through the Poclain Machine which was not recovered by the prosecution and there is no explanation for that also. The prosecution has not established that to whom the poclain machine belongs to and on what date, time it was brought into the property and what damage it caused and whether it is recovered or not, who was the driver at the time of occurrence. Therefore, the judgment of the trial court for acquittal of the accused for the offence under sections 351 IPC and Section 3(1) of TNPPDL Act, does not warrant any interference and therefore, the appeal filed by the defacto complainant has no merit and the judgment of acquittal of the trial court for the offence under Section 451 and Section 3(1) of TNPPDL Act, is liable to be dismissed. 15. 15. The judgment passed in O.S.No.97 of 2011 on the file of District Munsif Court, Thiruthuraipoondi - Ex.D.2 clearly shows that on the date of occurrence, the defacto complainant was not in possession and enjoyment of the disputed property. Before executing surrender deed, P.W.6 already executed sale deed in favour of the accused. The accused was in possession and enjoyment of the property. P.W.6 has not lodged any complaint against the accused for cheating and fraud as pleaded by the defacto complainant. During the life time of P.W.6, defacto complainant has no right over the property. Further, defacto complainant has not filed any complaint against P.W.6 and P.W.6 should have been arrayed as one of the accused in the criminal case. On the evidence available on record, this court finds that the prosecution failed to prove its case beyond all reasonable doubt. Therefore, the benefit of doubt should be extended to the accused. Therefore, under these circumstances, appeal filed by the accused is to be allowed and the conviction and sentence passed for the offence under Sections 420 and 465 IPC are liable to be set aside. Accordingly, Crl.A.No.847 of 2019 filed by the accused is allowed. The conviction and sentence for offences under Sections 420 and 465 IPC are set aside. The order of acquittal passed by the trial Judge for the offence under Section 451 IPC and Section 3(1) of TNPPDL Act is confirmed. In view of the reasons stated above, the appeals filed by the defacto complainant are dismissed. 16. In the result, the appeal filed by the accused in Crl.A.No.847 of 2019 is allowed. The appeals filed by the defacto complainant in Crl.A.No.875 of 2019 and 114 of 2021 are dismissed. Bail bond, if any executed by the accused shall stand cancelled. Fine amounts, if any paid by him are ordered to be refunded forthwith.