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Madras High Court · body

2022 DIGILAW 2273 (MAD)

Nithiya v. Musthafa

2022-07-22

RMT.TEEKAA RAMAN

body2022
JUDGMENT 1. Accused 1 and 2 are the petitioners herein. They have filed the present Criminal Original Petition, seeking to quash C.C.No.108 of 2016 on the file of the learned Judicial Magistrate-I, Virudhachalam. 2. The brief facts leading to the filing of the above quash petition are as under: (i) Respondent herein was a former tenant who entered into a tenancy agreement with the petitioner on 15.10.2014 for a portion of the property at No.723, Junction Road, Keelpuram, Viruthachalam, with an advance amount of Rs.10 lakhs, out of which, he paid Rs.8 Lakhs. The monthly rent is Rs.40,000/- for the period of first 6 months. The respondent herein has remained as a tenant till the month of July 2015, thereafter, due to his personal financial crisis and ill health, the respondent could not continue his tenancy and thereafter, the tenancy agreement has been terminated and balance advance amount has been repaid as requested by him. (ii) The respondent after vacating the premises on 21.09.2015 lodged a police complaint on 16.10.2015, before the Superintendent of Police, Cuddalore, which has been forwarded to the Inspector of Police, Viruthachalam, for enquiry. (iii) During enquiry, all the facts about the tenancy was stated by the respondent. In addition, with regard to payment of advance amount of Rs.8 Lakhs, by way of two cheques for Rs.6 Lakhs and Rs.2 lakhs, it was stated as Rs.18 Lakhs as if Rs.10 Lakhs has been paid to the 1st petitioner and Rs.8 Lakhs has been paid to the 2nd petitioner and also the respondent had stated in the first complaint that after the premises being vacated and handed over to the petitioner, the petitioner insisted the respondent to get the 50 rupees stamp paper in the name of the 2nd petitioner and got a signature in the stamp paper as if total amount of Rs.8 lakhs has been repaid to the respondent without repayment of money and the respondent was prolonged for payment and thereafter, without repaying the money, the 2nd petitioner said to have threatened the respondent. A thorough investigation was made on the above complaint being received by the Inspector of Police, Viruthachalam and closed the complaint as false. A thorough investigation was made on the above complaint being received by the Inspector of Police, Viruthachalam and closed the complaint as false. (iv) Suppressing the fact of the above complaint, the respondent had lodged another complaint on 13.11.2015, which has been forwarded to the Inspector of Police, District Crime Branch, Cuddalore and the facts stated in the 2nd complaint varies with the facts of the 1st complaint. The fact stated in the 2nd complaint is that the advance amount of rental premises was fixed as Rs.18 Lakhs and in which Rs.10 lakhs has been received by the 1st petitioner and Rs.8 lakhs, by way of cheque has been deposited in the account of the 2nd petitioner, but only Rs.10 Lakhs has been mentioned as the advance amount in the rental agreement entered between them. (v) After vacating the premises, the respondent was called by the petitioner for repaying the advance amount and at that time, the 2nd petitioner took 50 rupees stamp paper from his table-draw, in which he has stated that Rs.8 lakhs amount has been returned and respondent was threatened by the petitioner and his henchmen, to sign and upon threat, the respondent signed the document and left the place. (vi) The Inspector of Police, District Crime Branch, Cuddalore had also conducted a thorough enquiry and found the complaint as false. (vii) Aggrieved by the report of the Inspector of Police, DCB on the oral representation made to the S.P. Cuddalore, the DSP, Viruthachalam was again made to enquire into the 2nd complaint and during enquiry, the petitioners had given a statement and the difference between the 1st and 2nd complaint lodged by the same 2nd respondent was pointed out and thereafter, the 2nd complaint was accepted and closed as false. (viii) After the complaint being closed as false in nature, the respondent preferred a private complaint before the learned Judicial Magistrate, Viruthachalam, for the same fact in Crl.M.P.No.950 of 2016 and the same has been forwarded to the Inspector of Police, Viruthachalam. In the private complaint it is stated that the respondent had entered into the tenancy agreement with the 2nd petitioner for the ground floor portion at Door No.723, Junction Road, Viruthachalam for a monthly rental of Rs.40,000/- for first six months and thereafter, Rs.45,000/- upto 18 months. In the private complaint it is stated that the respondent had entered into the tenancy agreement with the 2nd petitioner for the ground floor portion at Door No.723, Junction Road, Viruthachalam for a monthly rental of Rs.40,000/- for first six months and thereafter, Rs.45,000/- upto 18 months. Accordingly, Rs.8 Lakhs was deposited into the account of the 2nd petitioner on 13.10.2014 by way of two cheques and thereafter on 15.10.2014, the 1st petitioner demanded Rs.10 Lakhs also as advance and further, on receipt of total sum of Rs.18 Lakhs, the premises was handed over and when the respondent intended to vacate the premises, he was called to get back his advance money on 21.10.2015 and the respondent was asked to sign a receipt in a 50 rupees stamp paper in which it is stated the advance amount of Rs.8 Lakhs has been repaid, but no money was paid and when the respondent asked for repayment of advance money, he was threatened. (ix) The Inspector of Police had made a thorough enquiry with all the witnesses who were cited as witnesses in the petition filed by the respondent and necessary statements have been obtained from the witnesses and thereafter, filed a detailed report before the Magistrate, wherein it is stated that only Rs.8 Lakhs has been paid as advance and since the respondent wanted to vacate the premises on 18.06.2015, a part amount of Rs.1 lakh on 15.07.2015 and another part amount of Rs.1 lakh on 03.08.2015 and part amount of Rs.2 lakhs have been received by the respondent by signing the vouchers and thereafter, while vacating the premises on 18.09.2015, the balance amount was paid to the respondent and also it was observed that there was lot of contradictions between the complaints lodged by the respondent and also specifically stated that there was no threatening and submitted the above report before the Magistrate on 25.04.2016. (x) Learned Magistrate after receiving the report from the Inspector of Police, Viruthachalam should have closed the private complaint filed, but without following the norms had taken the complaint on file in C.C.No.108 of 2016 and issued summons to the petitioner 3. (x) Learned Magistrate after receiving the report from the Inspector of Police, Viruthachalam should have closed the private complaint filed, but without following the norms had taken the complaint on file in C.C.No.108 of 2016 and issued summons to the petitioner 3. The learned counsel Mr.R.C.Paul Kanagaraj, appearing for the petitioners/accused would contend that the respondent herein and the second petitioner belongs to the same political party and due to some political motive influenced by the opponents of the 2nd petitioner, with an evil intention, the respondent herein had fabricated the xerox copy of the tenancy agreement and lodged several complaints before several authorities. 4. The Learned counsel for the petitioners further contended that initially the respondent gave a complaint, which was thoroughly investigated by the police and closed as 'false' and subsequently, another petition was given to the Superintendent of Police and the same is also closed as 'mistake of fact' on 06.11.2015. Another petition to Superintendent of Police, Cuddalore, after investigation is closed on 15.01.2016 and thereafter, a private complaint was filed before the Magistrate for registration of another complaint under Section 156 (3) of Cr.P.C., wherein the learned Magistrate has ordered investigation of charge in respect of offence under Section 506(i) alone, wherein after investigation, the police have filed a report that the private complainant has voluntarily signed the termination of the lease agreement and also received the entire advance amount paid under the lease agreement and since the respondent/private complainant has voluntarily signed, they have filed a Referred Charge Sheet on 26.04.2016. Thereafter, again a private complaint has been filed, wherein after the production of the lease agreement, the learned Magistrate has observed that in the lease agreement produced by the private complainant, it is mentioned as Rs.18 Lakhs, whereas in the lease agreement produced by the landlord, it is mentioned as Rs.8 Lakhs and accordingly, ordered and has taken the private complaint as C.C.No.108 of 2016. 5. It is further contended by the learned counsel for the petitioners, Mr.R.C.Paul Kanagaraj that when the case has been presented before the learned Judicial Magistrate as a private complaint, statement of oath has to be taken from the private complainant. 5. It is further contended by the learned counsel for the petitioners, Mr.R.C.Paul Kanagaraj that when the case has been presented before the learned Judicial Magistrate as a private complaint, statement of oath has to be taken from the private complainant. But, in this case, no such steps had been taken before issuing process in the Calendar Case and hence, non examination of witnesses on oath before forwarding the private complaint as CC No.108 of 2016 vitiates the entire proceedings. 6. After perusal of the copy of the reports pertaining to enquiry report by the Inspector of Police, Virudhachalam, enquiry report by the Inspector of Police, DCB and enquiry report of the Inspector of Police, based upon the order made in Crl.M.P.No.950 of 2016 dated 10.03.2016 and the copy of the settlement letter, I find that page No.1 and page No.3 are one and the same, while in page No.2 of one lease agreement, it was mentioned as Rs.8 lakhs and in another lease agreement, it is mentioned as Rs.18 lakhs. 7. I have perused the order passed by the learned Judicial Magistrate-I, Virudhachalam in Crl.M.P. No.950 of 2016 dated 10.03.2016, wherein it is categorically stated that the alleged offence are partly civil in nature and hence, further Inquiry report is sought for from the police official. The police official also conducted the enquiry and found that the amount due under the lease agreement has been duly paid and filed RCS (Referred Charge Sheet). Thereafter, the respondent has filed the present private complaint. 8. The police official also conducted the enquiry and found that the amount due under the lease agreement has been duly paid and filed RCS (Referred Charge Sheet). Thereafter, the respondent has filed the present private complaint. 8. Based upon the documents produced before the concerned learned Judicial Magistrate, as well as the investigation agency viz., Inspectors of Police, Virudhachalam, CBCID, District Crime Branch, and further enquiry pursuant to the order passed by the learned Judicial Magistrate under Section 156 (3) of Cr.P.C, all uniformly indicate that the entire amount was paid by the landlord viz., the petitioners herein who stand as accused and hence, taking note of the fact that before issuing summons to A1 and A2, no evidence has been recorded on oath before taking the private complaint on record and also taking note of the earlier proceedings, I find that the settled civil disputes between the parties has been given a criminal colour, which has been reflected from the criminal investigation done at four times and hence, I find that continuation of this case amounts to abuse of process of law, since the claim is a settled civil dispute. Therefore, C.C.No.108 of 2016, on the file of the learned Judicial Magistrate-I, Virudhachalam, stands quashed and the Criminal Original Petition is allowed. Consequently, the connected Criminal Miscellaneous Petition is closed.