Madras High Court
R.Gomathi vs The State Represented By Its on 8 September, 2022
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.O.P.No.17209 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.09.2022
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.No.17209 of 2022
and Crl.M.P.No.10410 of 2022
R.Gomathi ...Petitioner
Vs.
1.The State represented by its,
The Inspector of Police,
E2 Peelamedu Police Station,
Coimbatore.
2.J.Sathishkumar ... Respondents
PRAYER : Criminal Original Petition filed under Section 482 of Cr.P.C.,
to call for the entire records to the Crime No.632 of 2022 on the file of
the first respondent police and quash the same.
For Petitioner : Mr.E.K.Kumaresan
For Respondents
For R1 : Mr.E.Raj Thilak
Additional Public Prosecutor
For R2 : Mr.V.Jayachandran
Page 1 of 14
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.17209 of 2022
ORDER
This Criminal Original Petition has been filed to quash the F.I.R in Crime No.632 of 2022 registered on the file of the first respondent police, for the offences punishable under Section 420 of IPC and Section 4 of Tamil Nadu Prohibition of Charging Exorbitant Interest Act, 2003, as against the petitioner.
2. The case of the prosecution is that in order to settle the loan availed from the Central Bank of India, Kalapatti branch, the defacto complainant borrowed amount from the accused persons and for the name sake he executed sale deed in favour of the second and third accused separately and jointly by way of three sale deeds in respect of the subject properties on condition that after repayment of loan amount with interest, they have to reconvey the properties in his favour.
3. It is further alleged that when the defacto complainant approached the accused persons for repayment of amount along with interest, they demanded exorbitant interest and refused to reconvey the property. Therefore he lodged complaint and on receipt of the same, the Page 2 of 14 https://www.mhc.tn.gov.in/judis Crl.O.P.No.17209 of 2022 first respondent registered the FIR under Crime No.632 of 2022 for the offences punishable under Section 420 of IPC and Section 4 of Tamil Nadu Prohibition of Charging Exorbitant Interest Act, 2003.
4. Heard Mr.E.K.Kumaresan, learned counsel appearing for the petitioner, Mr.E.Raj Thilak, leaned Additional Public Prosecutor appearing for the first respondent police and Mr.V.Jayachandran, learned counsel appearing for the second respondent.
5. It is seen from the records that originally the properties comprised in S.F.No.45/4B to an extent of 61¾ cents, S.F.Nos.46/2A1 and 46/1B1 to an extent of 81 cents and S.F.Nos.46/2A1 and 46/1B1 to an extent of 82 cents were belonged to the second respondent/defacto complainant's grandfather viz., Chinna Gounder through a partition deed registered vide document No.1911 of 1960 dated 17.08.1960. Thereafter, his grand father entered into a deed of partition with the father of the second respondent on 19.12.1990 registered vide document No.4016 of 1990. After demise of his grandfather, his legal heirs partitioned the properties by the registered partitioned deed dated 19.07.2001 vide Page 3 of 14 https://www.mhc.tn.gov.in/judis Crl.O.P.No.17209 of 2022 document No.2165 of 2001. The second respondent's father was alloted the subject properties situated in Irugur Village and three female heirs of his grand father have been apportioned cash towards their share. In pursuant to the same, they also executed release deeds in favour of the second respondent's father.
6. Thereafter the petitioner and the second accused purchased the properties from the second respondent's father by way of three sale deeds as follows :-
Sale deed Sl. document Sale Property Vendor Purchaser No No. and consideration details.
date 1 2053/2019 Defacto Petitioner/ Rs.25,22,800 S.F.Nos.
dt complainant, A3 46/2A1 and
25.02.2019 his father 46/1B1 to an
and sister extent of 81
2 2054/2019 Defacto Accused Rs.25,53,950 S.F.Nos.46/2A
dt complainant, No.2 1 and 46/1B1
25.02.2019 his father to an extent of
and sister 82 cents
3 2055/2019 Defacto Jointly by Rs.19,23,250 S.F.No.45/4B
dt complainant, the to an extent of
25.02.2019 his father petitioner/ 61 ¾ cents
and sister A3 and
accused
No.2
7. At the time of purchase of the said properties, entire family Page 4 of 14 https://www.mhc.tn.gov.in/judis Crl.O.P.No.17209 of 2022 members of the second respondent represented that there was no encumbrance lis pendence or any charge whatsoever over the properties.
Believing their words, the petitioner and the second accused purchased the property for valid sale consideration. Thereafter they came to under stand that the legal heirs of the second respondent's grand father viz., Chinna Gounder have filed suit for partition in O.S.No.340 of 2018 on the file of the learned Principal Subordinate Judge, Coimbatore as against the second respondent and his father and sister, by challenging the registered partition deed dated 19.07.2001 vide document No.2165 of 2001 and also the release deed dated 23.01.2002 vide document No.154 of 2002 and another release deed dated 31.03.2004 registered vide document No.2583 of 2004.
8. Further while pending the suit, on the request made by the petitioner and other accused, the legal heirs of the said Chinna Gounder agreed to amicably settle the issue. Accordingly, they entered in to compromise and they agreed to withdraw the suit upon payment of Rs.18,00,000/- to the legal heirs of the said Chinna Gounder as full and final settlement. The purchasers viz., the petitioner and the second Page 5 of 14 https://www.mhc.tn.gov.in/judis Crl.O.P.No.17209 of 2022 accused have agreed to pay the said amount in order to conclude the issue once and for all. Accordingly, the petitioner and the second accused were impleaded as defendants Nos.6 & 7 in the said suit and by way of compromise joint memo dated 22.07.2020, the suit has been disposed of. In fact, in the said suit the second respondent also entered into the witness box and recorded the compromise in O.S.No.340 of 2018. Further in the said suit, the legal heirs of the Chinna Gounder have undertaken that they will not claim any right or possession and enjoyment which conveyed in favour of the petitioner and second accused by the registered sale deeds.
9. While being so, again the minor daughter of the second respondent herein filed another suit in O.S.No.1024 of 2021 on the file of the learned Principal Subordinate Judge, Coimbatore, representing through her mother and natural guardian, praying for partition of the subject properties. The second respondent with malafide intention and to illegally defeat the lawful right of the petitioner and second accused over the properties, the said suit was filed in the name of her minor child. Therefore, the purchasers viz., the accused 2 & 3 filed petition for Page 6 of 14 https://www.mhc.tn.gov.in/judis Crl.O.P.No.17209 of 2022 rejection of plaint in O.S.No.1024 of 2021 and the same is pending.
10. That apart, another one Sampath has also filed suit in O.S.No.29 of 2022 for permanent injunction, alleging that on 10.06.2017, he entered into an lease agreement with the father of the second respondent in respect of the very same properties. It was also filed on the instruction of the second respondent herein to defeat the lawful right of the petitioner and the second accused. Finally, the second respondent came with the present impugned complaint which is registered in Crime No.632 of 2022 as one of the attempts of the second respondent to prevent the purchasers viz., the petitioner and second accused from enjoying the properties. In the present complaint, the second respondent alleged that the sale deed was executed only for security purpose and for reconveyance of the subject properties, the accused persons demanded exorbitant interest.
11. On perusal of the sale deeds dated 25.02.2019, there is absolutely no clause of conditional sale to the effect that on payment of entire sale consideration with interest, the properties should be Page 7 of 14 https://www.mhc.tn.gov.in/judis Crl.O.P.No.17209 of 2022 reconveyed by the purchasers. When it being so, the entire FIR is nothing but clear abuse of process of law and no offence is made out as against the petitioner. It is relevant to extract the provisions under Section 420 of the Indian Penal Code as follows :-
420. Cheating and dishonestly inducing delivery of property — Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
The ingredients to constitute an offence under Section 420 of IPC are as follows :-
(i) A person must commit the offence of cheating under Section 415 and
(ii) The person cheated must be dishonestly induced to (a) deliver property to any person or (b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security.
Cheating is an essential ingredient for an act to constitute an offence Page 8 of 14 https://www.mhc.tn.gov.in/judis Crl.O.P.No.17209 of 2022 under Section 420.
12. It is relevant to rely upon the judgment made by the Honourable Supreme Court of India in the case of M/s. Indian Oil Corporation Vs. NEPC India Limited and others reported in (2006) 6 SCC 736, held that the civil liability cannot be converted into criminal liability and it is necessary to take notice of a growing tendency in business circle to convert purely civil dispute in criminal case. This is obviously on account of prevalent impression that civil law remedies are time consuming and do not adequately protect the interest of lender/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claim which do not involve any criminal offence by applying pressure through criminal prosecution should be deprecated and dishonoured.
Page 9 of 14 https://www.mhc.tn.gov.in/judis Crl.O.P.No.17209 of 2022
13. In the case of G.Sagar Suri Vs. State of Uttar Pradesh reported in 2000 (2) SCC 636, the Honourable Supreme Court of India held as follows:-
“It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence, criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal Court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”
14. Further it is relevant to rely upon the land mark Judgment of the Hon'ble Supreme Court of India in the case of State of Haryana and others Vs. Bhajanlal and others reported in 1992 Supp (1) SCC 335, in which, the Hon'ble Supreme Court of India has laid down the following categories of instances wherein inherent powers can be exercised in order to secure the ends of justice as follows:-
Page 10 of 14
https://www.mhc.tn.gov.in/judis Crl.O.P.No.17209 of 2022 “(a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;
(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(c) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;
(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;
(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;Page 11 of 14
https://www.mhc.tn.gov.in/judis Crl.O.P.No.17209 of 2022
(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”
15. It has to see that, whether a matter which is essentially of a civil nature has been given a cloak of a criminal offence. Where the ingredients required to constitute a criminal offence are not made out from a bare reading of the complaint, the continuation of the criminal proceeding will constitute an abuse of the process of the Court. In the present case, the averments in the complaint, read on its face, do not disclose the ingredients necessary to constitute offences under the Penal Code. An attempt has been made by the second respondent to cloak a civil dispute with a criminal nature despite the absence of the ingredients Page 12 of 14 https://www.mhc.tn.gov.in/judis Crl.O.P.No.17209 of 2022 necessary to constitute a criminal offence. The complaint filed by the second respondent against the petitioner constitutes an abuse of process of Court and is liable to be quashed.
16. In view of the above discussions, this Criminal Original Petition stands allowed and the FIR in Crime No.632 of 2022 on the file of the first respondent police is hereby quashed. Consequently, connected miscellaneous petition is closed.
08.09.2022 Index : Yes/No Speaking/Non speaking order rts To
1.The Inspector of Police, E2 Peelamedu Police Station, Coimbatore.
2.The Public Prosecutor, High Court, Madras.
Page 13 of 14 https://www.mhc.tn.gov.in/judis Crl.O.P.No.17209 of 2022 G.K.ILANTHIRAIYAN. J, rts Crl.O.P.No.17209 of 2022 and Crl.M.P.No.10410 of 2022 08.09.2022 Page 14 of 14 https://www.mhc.tn.gov.in/judis