Madras High Court
Sappani Pillai vs State:Represented By on 30 November, 2021
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.O.P.Nos.6894 & 6076 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 01.10.2021
PRONOUNCED ON : 30.11.2021
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.O.P.Nos.6894 & 6076 of 2021
and
Crl.M.P.Nos.4580, 4581, 3967 & 3968 of 2021
Sappani Pillai ... Petitioner in Crl.O.P.No.6894 of 2021
1.Vasantha
2.Lakshmi Priya
3.Karthik ... Petitioners in Crl.O.P.No.6076 of
2021
Versus
1.State:Represented by
Inspector of Police
T-15, SRMC Police Station
Crime No.666 of 2018
Chennai 600 116.
2.Rajkumar ... Respondents in both Crl.O.Ps.
Page 1 of 26
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.6894 & 6076 of 2021
Common Prayer: Criminal Original Petitions filed under Section 482
of the Code of Criminal Procedure, to call for the records in C.C.No.25
of 2021 in the Court of the Judicial Magistrate No.I, Poonamallee for the
offences punishable under Sections 294(b), 406, 420 & 506(ii) r/w 120
(b) IPC, in Crime No.666 of 2018 on the file of the first respondent and
quash the same.
For Petitioner in
Crl.O.P.No.6894/2021 : Mr.K.Mohanamurali
for Mr.N.Prateik
For Petitioners in
Crl.O.P.No.6076/2021 : Mr.P.Palaniyandy
For Respondents
in both Crl.O.Ps. : Mr.A.Damodaran for R1
Additional Public Prosecutor
: Mr.K.Venkateswaran for R2
COMMON ORDER
These petitions have been filed to call for the records in C.C.No.25 of 2021 in the Court of the Judicial Magistrate No.I, Page 2 of 26 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.6894 & 6076 of 2021 Poonamallee for the offences punishable under Sections 294(b), 406, 420 & 506(ii) r/w 120 (b) IPC, in Crime No.666 of 2018 on the file of the first respondent and quash the same.
2. The petitioner/A1 in Crl.O.P.No.6894 of 2021, the petitioners /A3 to A5 in Crl.O.P.No.6076 of 2021, in C.C.No.25 of 2021, who are facing trial, for the offence under Sections 294(b), 406, 420 & 506(ii) r/w 120 (b) IPC, have filed the above petition.
3. For the sake of convenience and clarity, the petitioners are referred as per rank in the C.C.No.25 of 2021 before the trial Court.
4. The learned counsel for the petitioners submitted that the first petitioner/A3 viz., Vasantha/A3 is the wife of A2/Late.Kannaiyya, who passed away on 10.06.2011, A4 is the daughter and A5 is the son of A2/Late.Kannaiyya. A1/Sappani Pillai is the partner of Subbayya Pillai, father of the second respondent/defacto complainant, and the said Subbayya Pillai died on 04.02.2018. The accused 2 to 4 were allotted Page 3 of 26 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.6894 & 6076 of 2021 plots by the Tamil Nadu Slum Clearance Board and Plot No.114 was in the name of A2/Kannaiyya, Plot No.115 was in the name of A3/Vasantha and Plot No.116 was in the name of A4/Lakshmi Priya. For the urgent requirements of their family, viz., expenses of the marriage of A4, A2 got introduced to Sappani Pillai/A1, who was in construction business in the name of Ashwini constructions and he agreed to help them, informed them that the properties in plots allotted to A2 to A4 can be sold for a consideration of Rs.28 lakhs and both of them agreed and entered into a sale agreement on 02.09.2004. A1/Sappani Pillai was introduced to Subbayya Pillai, father of the second respondent, as business associate and as per the sale agreement, the final price was fixed for a sum of Rs.18,92,000/- and Rs.8,00,000/- was paid at that time of agreement and Rs.6,00,000/- was to be paid within a period of one month and balance of Rs.4,92,000/- at the time of execution of the sale deed. Further there was a written clause that after obtaining sale deed in favour of A2 to A4 from the Tamil Nadu Slum Clearance Board, sale deeds to be executed, within one year thereon, further to complete the process preferably within a period of one year. It was specifically mentioned that time is Page 4 of 26 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.6894 & 6076 of 2021 not an essence. He further submitted that following the same, Power of Attorney was executed by A2, A3 and A4 in favour of A1 to deal with the property. Thereafter, the Joint Power of Attorney was cancelled through Doc.No.1611 of 2004 on 18.10.2004 which was informed to A1 by telegram. Thereafter, the marriage between A4/Lakshmipriya with one Saminathan was conducted on 31.10.2004. Thereafter, A1 approached A2 and paid a sum of Rs.1,25,000/- for electricity connection, removal of obstructions to the property. As per this understanding, A2 to A4 agreed to execute Power of Attorney separately for each plots, since earlier Power of Attorney given in composite was cancelled. Thereafter, A2 executed the Power of Attorney in Doc.No.1922 of 2004 on 15.10.2004, A3 in Doc.No.1924 of 2004 and A4 in Doc.No.1923 of 2004 on 15.12.2004. Later on the demise of A2 on 10.06.2011, a fresh Power of Attorney in Doc.No.782 of 2015 in favour of A1 was executed by A3, A4 and A5 for Plot No.114.
5. This being the case, the defacto complainant had projected as though on 04.02.2018 after the demise of his father Page 5 of 26 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.6894 & 6076 of 2021 Subbayya Pillai, the defacto complainant had come to house of the petitioners and asked for the share of his father's property in Plot Nos.114, 115 and 116. A3 to A5 said to have informed that A1 was given Power of Attorney for the properties. The second respondent/defacto complainant had no right over the property and he was threatened not to raise any claim and issues in this regard in future. Thereafter, the second respondent confirmed the same by verifying the Encumbrance Certificate, found registration of sale agreement for the plots in Doc.No.5902 of 2004 was in force. Suppressing this agreement with his father, subsequently, Power of Attorney documents was in conspiracy with A1 and all the accused attempted to misappropriate and cheat second respondent. It is further submitted that A1 and Subbayya Pillai were jointly doing real estate business. Since Subbayya Pillai was not showing interest in making the investments as promised, A1 continued in the project. Further there was some difference of opinion with Subbayya Pillai with regard to the other properties, for which a civil suit is pending before the Sub-Court, Kanchipuram, in O.S.No.349 of 2009 between A1 and Subbayya Pillai, both fell apart and no business Page 6 of 26 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.6894 & 6076 of 2021 thereafter. As regards the property of A2 to A4, though an agreement was entered by Sappani Pillai along with Subbayya Pillai, Late Subbayya Pillai failed to show interest to make investment and hence, the agreement became unenforcible. The only fault is that the said sale agreement was not cancelled by any registered deed. The sale agreement dated 02.09.2004 was never acted upon. The said Subbayya Pillai was not involved in this business venture with A1 and he was not informed about the transactions in respect of Plot Nos.114, 115 and 116 to A2 to A4, thereafter A1 not with A2 to A4. Further, he submitted that if the sale agreement Doc.No.5902 of 2004 dated 02.09.2004 is construed to be in force, then also, no offence is made out, since as per the condition No.6 of the sale agreement, condition is that within two months from the receipt of sale deed from the Tamil Nadu Slum clearance Board, the properties to be conveyed to A1/Sappani Pillai and late Subbayya Pillai. The Slum Clearance Board is yet to execute the sale deed.
6. In this case, admittedly the sale deed is yet to be conveyed by the Tamil Nadu Slum Clearance Board to A2 to A4. The accused A2 Page 7 of 26 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.6894 & 6076 of 2021 to A4, not received any money from the defacto complainant's father and whatever the money paid by A1 as major payments were through bank and cheques. The defacto complainant is unable to produce even a single piece of evidence to show payment were made by his late father, pursuant to the sale agreement dated 02.09.2004. The defacto complainant is making a claim that his father is entitled to his share in the property without any proof. Till the life time of Subbayya Pillai, from the year 2004 to 2018, the said Subbayya Pillai had objected to the execution of the Power of Attorney Doc.No.1609 of 2004 in favour of A1 and subsequent Power of Attorney Doc.Nos.1922, 1923, 1924 of 2004 & 782 of 2015. The said Subbayya Pillai has withdrawn from the sale agreement, he had not made any objection and he left his business venture, A1 alone is the Power Agent who made payments with regard to sale of plots. Since the valuation of the property in Plot Nos.114, 115 & 116 have increased, out of greed, with false allegations, the defacto complainant lodged the above case. Prior to his complaint, the defacto complainant and LRs of Late Subbayya Pillai filed a civil suit in O.S.No.383 of 2018 on 17.07.2018, for execution of sale deed by A2 to Page 8 of 26 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.6894 & 6076 of 2021 A4 as per Doc. No.5902 of 2009 the sale agreement dated 02.09.2004.
7. In the plaint, their admission is that the sale deed is yet to be executed by the Tamil Nadu Slum Clearance Board to A2 to A4. Further nowhere in the plaint, any averment is made or any document or materials produced to show when and what manner the payments were made by late Subbayya Pillai pursuant to the sale agreement.
8. Suppressing the Civil Suit, the defacto complainant lodged a complaint as though he was cheated and misappropriation taken place. There is no tangible material to show that investment is made by the said Late Subbayya Pillai. In view of the same, there cannot be any misappropriation and cheating. Further with regard to use of abusive words and criminal intimidation, it had remained only as threat and nothing more.
9. For the same cause of action, the defacto complainant and LRs of Late Subbayya Pillai have filed a Civil Suit which is pending. Page 9 of 26 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.6894 & 6076 of 2021 The civil suit will have a bearing and thereafter it is to be seen whether at all Subbayya Pillai had made any payment and he has got share, pursuant to the sale agreement dated 02.09.2004.
10. The respondent police failed to consider all these facts which are predominately civil in nature. For the reason best known to them, they had filed a final report which cannot be sustained in any manner. He further submitted that a civil dispute has been given a criminal cloak.
11. It is to be seen that, in this case, a sale agreement was executed on 02.09.2004 and in that sale agreement, it was agreed that Rs.8 lakhs to be paid on that day and balance of Rs.6 lakhs to be paid within one month and thereafter, balance amount of Rs.4,92,000/- to be paid at the time of execution of sale deed. Since the said Sappani Pillai/A1 and late Subbayya Pillai failed to make payments as per the sale agreement immediately on 18.10.2004, the Power of Attorney documents were cancelled. Thereafter A1/Sappani Pillai alone Page 10 of 26 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.6894 & 6076 of 2021 approached A2 to A4 pursued the sale of plots, made payments and executed the required documents. Late Subbayya Pillai was not involved in any transaction thereof.
12. The accused Nos.2 to 4 had received a sum of Rs.17 lakhs from Sappani Pillai in several instalments through cheques. Not even a single rupee was received from late Subbayya Pillai.
13. Further in support of his contention, the learned counsel for the petitioners /accused relied upon the judgments as follows:-
1) R.K.Vijayasarathy Vs. Sudha Seetharaman reported in (2019) 16 SCC 739.
2) Narandas Karsondas Vs. S.A.Kamtam and Another reported in (1977) 3 SCC 247.Page 11 of 26
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3) Suraj Lamp and Industries Pvt.Ltd. Vs. State of Haryana reported in (2012) 1 SCC 655.
4) Pawan Kumar Vs. State of Haryana and another reported in 1996 SCC (4) 17.
5) Vikram Johar Vs. The State of Uttar Pradesh & another reported in (2019) 14 SCC 207.
6) Central Bureau of Investigation, Hyderabad Vs. K.Narayana Rao reported in 2012 (9) SCC 512.
7) Indian Oil Corporation Vs. NEPC India Limited and others reported in 2006 (5) SCC Page 736.
14. Even if the charge sheet is taken as a whole, then to, offence is not made out. Further the sale agreement is of the year 2004. Till the demise of the defacto complainant's father late Subbayya Pillai Page 12 of 26 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.6894 & 6076 of 2021 in the year 2018, neither late Subbayya Pillai nor his LRs including the defacto complainant raised any objection, made any claim on the transactions between A1 and the other accused. Further, in a case of contract of sale, that itself does not create any interest or right over the plot Nos.114, 115 & 116. The Power of Attorney is only a deed of convenience under stamp as required by law, authorizing the Power of Attorney to act on behalf of the principal. Further an agreement of sale, whether with possession or without possession, is not a deed of convenience, as per Section 54 of the Transfer of Property Act. Sale of immovable property cannot be made only by sale agreement and it does not create any interest or right over the property. Further, the abuse and threat is not followed with action and that would not attract any offence. Further, in the case of conspiracy, it is to be seen that from the uncontroversial statements and materials, no inference can be drawn against the accused and, the circumstances are incapable of any reason and explanation leading to the guilt of the accused. In this case, the circumstances projected by the prosecution nowhere leads to any reasonable explanation.
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15. The Hon'ble Apex Court had clearly held that in a commercial transaction or dispute which may also involve criminal offence, if the remedy lies only in civil law, the complaint can be quashed. Thus the case under Section 482 of Cr.P.C., can be quashed. Relying upon another judgment, the learned counsel for the accused has submitted that the case against them if taken at their face value and seen at its entirety, prima facie no offence is made out as against the accused. Hence, prayed for quashing the C.C.No.25 of 2021.
16. The second respondent/defacto complainant submitted that the defacto complainant's father died intestate on 04.02.2018. During his life time, the second respondent's father along with A1/Sappani Pillai was carrying real estate business. In the course of the business, they had entered into a sale agreement with A2 to A4 for the plots allotted to them by the Tamil Nadu Slum Clearance Board in Plot Nos.114, 115 and 116 in Gandhi Nagar, Ambattur, Tiruvallur District. At the time of entering the agreement, Rs.8 lakhs was paid by both the Page 14 of 26 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.6894 & 6076 of 2021 respondent's father and Sappani Pillai (A1) which is recorded in the sale agreement which is a registered document. Subsequently, within one month Rs.6 lakhs was to be paid, late Subbayya Pillai and Sappani Pillai (A1) paid 3 lakhs each. Thereafter, the Power of Attorney was in favour of Sappani Pillai alone without knowledge of late Subbayya Pillai. Using the same, now, the accused have conspired to alienate the property to some other person, thereby a part of sale consideration received from late Subbayya Pillai has been misappropriated and cheated. After the death of late Subbayya Pillai during month of February 2018, the second respondent approached the accused and asked for the share of late Subbayya Pillai. The second respondent was abused, threatened and further warned not to make any claim. Second respondent applied for Encumbrance certificate and found that the earlier Power of Attorney dated 15.10.2004 was cancelled on 18.10.2004 without the knowledge of Late Subbayya Pillai, and later another Power of Attorney was extended by A2 to A4 individually on 15.12.2004. Further after demise of Kannaiyya (A2), who died on 10.06.2011, allottee for Plot No.114, another Power of Attorney Page 15 of 26 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.6894 & 6076 of 2021 Doc.No.782 of 2015 was executed by A3 to A5 in favour of A1. The accused 2 to 4 executed Power of Attorney in favour of A1 alone and late Subbayya Pillai father of the second respondent was not informed about the same. This Power of Attorney was executed clearly with intention to misappropriate the amounts paid by the late Subbaya Pillai, the second respondent's father. During April 2018, the defacto complainant approached the accused to cancel the Power of Attorney dated 02.09.2004 created for the purpose of cheating, in conspiracy by all the accused. Since the second respondent's father is a joint agreement holder, the defacto complainant expressed his willingness to pay the balance sale consideration Rs.2,46,000/- his father late Subbaya Pillai's share to complete the agreement for sale. The accused not only refused, they threatened and abused the defacto complainant. Hence, he lodged a complaint during April, 2018, which was initially assigned CSR.No.375 of 2018, no action taken. Thereafter, the 2nd respondent approached the Judicial Magistrate No.I, Poonamallee, filed a Petition u/s.156(3) Cr.P.C, in CMP.No.4425 of 2008. Thereafter only a case came to be registered. On completion of investigation, charge sheet filed along with Page 16 of 26 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.6894 & 6076 of 2021 listed witnesses LW1 to LW6 and annexing documents, the Lower Court has taken the case on file in C.C.No.25 of 2021. Immediately, the petitioners rushed to this Court without following the procedure established by law. Hence, prayed for dismissal of this petition.
17. The learned Additional Public Prosecutor submitted that in this case, on the orders of the Judicial Magistrate No.I, Poonamallee, u/s.156(3) CrPC in CMP.No.4425 of 2018, dated 24.08.2018, case in Crime No.666 of 2018 got registered on 24.10.2018. Immediately on receipt of the First Information Report, the complainant was examined and statements recorded. Thereafter, his brother and wife were examined as LW1 to LW3. All these witnesses categorically spoken about A1/Sappani Pillai and late Subbayya Pillai were partners doing real estate business and on 02.09.2004 a sale agreement was entered by them with between A2 to A4 for the Plots No.114, 115 and 116 allotted to them by the Tamil Nadu Slum Clearance Board. As per the sale agreement, the said late Subbayya Pillai made equal payments along with Sappani Pillai (A1) and he is entitled for 50% of the share in the Page 17 of 26 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.6894 & 6076 of 2021 property.
18. This being the case, suppressing the registered sale agreement, A1 conspired with the other accused, got a Power of Attorney executed in his name alone, and was dealing with the property and now taking advantage of demise of late Subbayya Pillai, they are denying the LRs of late Subbayya Pillai of their rights and share in the property. Thus, all the accused conspired together, had committed the above offence. LW4 is the SRO who produced the certified copies of Doc.Nos.1992/2004, 1923/2004 1924/2004 the Power of Attorney documents executed by A2 to A4 in favour of A1. After demise of Kannaiya(A2), A3, A4 and A5 executed another Power of Attorney for Plot.No.114 in Doc.No.782 of 2015 in favour of A1. He also produced the sale agreement Doc.No.5092 of 2004. Thus from the certified copies of the document, it is proved that when earlier sale agreement was in force for the Plots allotted to A2 to A4, subsequently agreement and power of attorney with A1 alone created. LW5 is the Sub-Inspector of Police who registered the First Information Report, recorded the Page 18 of 26 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.6894 & 6076 of 2021 statements of witnesses. LW6 is the Inspector of Police Investigating Officer who conducted further investigation, filed charge sheet in this case. Pendency of civil suit would not absolve the accused of their criminality, in misappropriating and cheating the funds of late Subbayya Pillai. Further, all the accused conspired together denied the LRs of Subbayya Pillai of their share. The sale agreement dated 02.09.2004, the document speaks for itself and the statement of witnesses would confirm that all accused, conspired together, committed the offence of misappropriation and cheating, abused 2nd Respondent using filthy language and also criminally intimidated him. On completion of investigation, charge sheet filed before the Lower Court, and the Lower Court, on perusal of the materials, finding prima facie case made out, against the accused taken the case on file in C.C.No.25 of 2021 issued summons. Immediately, the petitioners approached this Court. The learned Additional Public Prosecutor submitted that the points raised by the petitioners are factual in nature which are to be decided during trial and hence, opposed the quash application.
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19. Considering the submission and on perusal of the materials, it is seen that A1/Sappani Pillai and late Subbayya Pillai father of defacto complainant were jointly doing real estate business initially. In this case, A2, A3, A4 were allotted plots by the Tamil Nadu Slum Clearance Board under Lease-cum-Sale Agreement Scheme for Plots No.114, 115 and 116. These plots were agreed to be sold to Sappani Pillai and Subbayya Pillai, sale agreement dated 02.09.2004 was entered. As per the sale agreement, initially, an amount of Rs.8 lakhs was paid on that day, followed by Rs.6 lakhs to be paid within one month thereafter, balance sum of Rs.4,92,000/- to be paid on the day of execution of sale deed. In the sale agreement, though the Power of Attorney clause was initially typed in Para Nos.9 & 11, later it was struck down. For what reason it was created and struck down is not known. It is clear that late Subbayya Pillai was aware of these facts. Further, there is no specific prohibitory clause whether Power of Attorney to be executed in favour of both the agreement holders namely, Sappanipillai and Subbayya Pillai. Thereafter, on 15.10.2004, Power of Attorney was executed jointly in Doc.No.1609 of 2004 by A2 to A4 in Page 20 of 26 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.6894 & 6076 of 2021 favour of A1. Thereafter, on 18.10.2004, the Power of Attorney Doc.No.1609/2004 was cancelled by cancellation deed Doc.No.1611 on 18.10.2004. Prior to the cancellation, telegrams were sent to A1, intimating the same. Thereafter, payments made by Sappani Pillai A1 alone, which is recorded on 30.11.2004, followed by the Power of Attorney executed by A2 in Doc.No.1922 of 2004, A3 in Doc.No.1924/2004 and A4 in Doc.No.1923/2004. Since A2 passed away on 10.06.2011, the Power of Attorney in Doc.No.1922 of 2004 cannot be acted upon and thereafter, the LRs of A2, viz., A3, A4 and A5 executed the Power of Attorney Doc.No.782 of 2015 for Plot No.114. Till the life time of late Subbayya Pillai, father of the defacto complainant, the defacto complainant or any of the LRs of late Subbayya Pillai has not made any claim or raised any objection with regard to execution of the Power of Attorney Doc.Nos.1609/2004, 1922/2004, 1923/2004 & 782 of 2015. It is seen that, in the year 2009, there was some dispute between Sappani Pillai/A1 and late Subbayya Pillai, who filed a Civil Suit in O.S.No.349 of 2009 with regard to the property at Mugalivakkam. It is also seen that, after the demise of late Subbayya Page 21 of 26 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.6894 & 6076 of 2021 Pillai, the LRs of late Sappani Pillai, filed a Civil Suit in O.S.No.383 of 2018 before the Sub-Court, Poonamallee on 18.07.2018, seeking relief for the same plots based on the sale agreement doc. No.5902 of 2004 dated 02.09.2004, which is the genesis and subject matter of the above case.
20. The crux in the Civil Suit is that the accused in this case have conspired together and are not performing the obligations as per the sale agreement Doc. No.5902 of 2004 dated 02.09.2004, hence, sought for execution of sale deed in respect of ½ share of late Subbayya Pillai, as per the sale agreement and to declare the Power of Attorney granted to A1 by the other accused as null and void. Nowhere in the suit, there is specific averment as regards the mode and manner in which the said late Subbayya Pillai, made payments pursuant to the sale agreement dated 02.09.2004.
21. On the contrary, the payments by A1 was made in cash, Page 22 of 26 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.6894 & 6076 of 2021 cheque details are given which is not questioned. On the other hand, the defacto complainant's only grievance appears that he is willing to pay his share of Rs.2,46,000/- and to get his 50% share in the sale agreement dated 02.09.2004. On a perusal of the sale agreement dated 02.09.2004, it is categorically stated in para Nos.5, 6 and 11 that the accused 2 to 4's endeavour is to obtain sale deed in their favour from the Tamil Nadu Slum Clearance Board as early as possible but not later then one year and thereafter, complete the execution of sale deed in favour of Subbayya Pillai and Sappani Pillai, within a period of two months. Thereafter, from verification of the document it is seen that, time is not the essence of the contract. The primary reason for sale agreement is for the marriage expenses of the third accused the sale agreement was entered. The marriage was conducted on 31.10.2004. It is nowhere stated that the sale deed has been executed by the Tamil Nadu Slum Clearance Board to the allottees namely, A2, A3 and A4, which is one of the primary condition of the sale agreement.
22. In view of the same, it cannot be stated that the sale Page 23 of 26 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.6894 & 6076 of 2021 agreement dated 02.09.2004 is violated. It is alleged that the defacto complainant and LRs of late Subbayya Pillai were cheated and their funds have been misappropriated. However, for the same cause of action, the LRs of late Subbayya Pillai filed Civil Suit which is pending in O.S.No.383 of 2018. The issue involved in the above case is predominantly civil in nature. From the sale agreement dated 02.09.2004, it is seen that there is no prohibitory clause for executing Power of Attorney.
23. In view of the same, the Act of executing Power of Attorney by the accused 2 to 4 in favour of A1 is with ulterior motive and with criminal intention is not acceptable. As regards A5, he is the LR of A2. Since his father A2/Kannaiya died on 10.06.2011, a fresh allottment order No.5188 of 2015 was issued by the Tamil Nadu Slum Clearance Board in respect of Plot No.114 of 2004 to the LRs of A2, viz., A3 to A5. Hence, the Power of Attorney Doc.No.782 of 2015 had been executed in favour of A1. A5 had signed the Power of Attorney and nothing more. From the statement of witnesses, it is seen that LW1 Page 24 of 26 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.6894 & 6076 of 2021 is the defacto complainant, LW2 is the brother of LW1, LW3 is the wife of LW2. These three witnesses have never stated that they had any personal knowledge about the relationship between Sappani Pillai/A1 and Subbayya Pillai (deceased) and what were the terms and conditions and what was the business agreement and understanding between them, and with regard to A2 to A4, there are no shred of materials.
24. On the contrary, the only violation is that when the sale agreement dated 02.09.2004 is in existence, the execution of Power of Attorney in favour of A1 is not proper. LW4 is the SRO in the year 2020 and he is not the SRO in the year 2004 or 2015 when the documents were registered and he had no personal knowledge except producing the certified copies of the documents, nothing more. LW5 & LW6 are the Investigating Officers. On going through the statement of all the witnesses in this case, neither the defacto complainant nor any of the LRs of late Subbayya Pillai could produce any shred of paper or materials to show the payments made by late Subbayya Pillai before or after execution of the sale agreement doc. No.5902 of 2004 dated Page 25 of 26 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.6894 & 6076 of 2021 02.09.2004. These facts are to be decided in the civil suit and not in a criminal case.
25. In view of the same, this Court is of the view that if the criminal proceedings are continued against the petitioners/accused in C.C.No.25 of 2021, it would amount to abuse of process of law. Page 26 of 26 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.6894 & 6076 of 2021 M.NIRMAL KUMAR, J.
dna
26. Therefore, these Criminal Original Petitions are allowed and the proceedings in C.C.No.25 of 2021 as against the petitioners are quashed. Consequently, connected Miscellaneous Petitions are closed.
30.11.2021 Index: Yes/No Internet: Yes/No dna To
1.The Judicial Magistrate No.I, Poonamallee.
2.The Inspector of Police T-15, SRMC Police Station Crime No.666 of 2018 Chennai 600 116.
3.The Public Prosecutor High Court, Madras.
PRE-DELIVERY ORDER IN Crl.O.P.Nos.6894 & 6076 of 2021 and Crl.M.P.Nos.4580, 4581, 3967 & 3968 of 2021 Page 27 of 26 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.6894 & 6076 of 2021 Page 28 of 26 https://www.mhc.tn.gov.in/judis