Madras High Court
Dr.Subba Somu vs The Inspector Of Police
Author: N. Anand Venkatesh
Bench: N. Anand Venkatesh
1 Crl.O.P.No.13280 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Delivered on
25.02.2021 01.03.2021
CORAM:
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
Crl.OP No.13280 of 2020
and
Crl.MP.No.5175 of 2020
1.Dr.Subba Somu
2.Mr.M.Sivasubramanian ..Petitioners/Accused
.Vs.
1.The Inspector of Police,
CCB II Team XXIII (Land Grabbing Spl Team)
Commissioner's Office Building,
132, EVK Sampath Salai,
Vepery, Chennai 600 007.
2.K.Vanisri ..Respondents/complainant
[The name of the 1st respondent and
Crime No.5722/2020 are amended as per order in
Crl.MP.No.5722/2020 in Crl.OP.No.13280/2020 dt.25.09.2020)
PRAYER : Criminal Original Petition is filed under Section 482 of
the Code of Criminal Procedure, to call for the entire records
pertaining to proceedings of the FIR in Crime No.71 of 2020,
pending on the file of the first respondent herein against the
petitioners, registered at the instance of the de facto complainant
and quash the same.
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2 Crl.O.P.No.13280 of 2020
For Petitioners : Mr.ARL.Sundaresan
Senior Counsel
Mr.R.Umasuthan
For 1st Respondent : Mr.A.Natarajan
State Public Prosecutor
for R1
Asstd: by
Mr.M/Mohamed Riyaz
Additional Public Prosecutor
Mr.G.Mohanakrishnan
Mr.S.Janarthanan
for R 2
ORDER
This petition has been filed challenging the FIR registered in Crime No. 71 of 2020, on the file of the 1st Respondent.
2. The case of the prosecution is that the subject property originally belonged to a partnership firm which was subsequently dissolved and it is said to have been vested on the de facto complainant by virtue of the decree passed in C.S. No. 483 of 1979. Thereafter, the building in the property was https://www.mhc.tn.gov.in/judis/ 2/18 3 Crl.O.P.No.13280 of 2020 demolished to put up a new construction and a joint venture agreement was also entered into with a developer. The agreement did not go through and hence the property continued to be vacant. The further case of the prosecution is that the vendor of the Petitioners namely, Mr. Iqbal had trespassed into the property and had created documents and also managed to obtain a patta in his favour.
3. There are suits filed by both Mr. Iqbal and the 2nd Respondent claiming for the relief of permanent injunction against each other and the same is pending before the City Civil Court, Chennai. The patta issued in favour of Mr. Iqbal came to be challenged by the 2nd Respondent and the same was cancelled by the order passed by the District Revenue Officer (hereinafter referred to as “DRO”) in the year 2011 and a Writ Petition has been filed by Mr. Iqbal before this Court challenging the said Order and the same is pending.
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4. Even when a sale deed was executed in favour Mr. Iqbal by one Ms. T. Chandranatham, a complaint came to be given by the 2nd Respondent and an FIR came to be registered in Crime No. 199 of 2012 on the file of CCB, Chennai. This complaint was given on the ground that the accused persons therein have involved in fabrication of documents and were attempting to grab the property of the 2nd Respondent. This FIR was investigated and a final report was filed before the Chief Metropolitan Magistrate Court, Chennai against Mr. Iqbal and four others for offences under Sections 490, 420, 447, 448, 465, 467, 468, 471 r.w. 120-B of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) and the same was taken on file in CC. No. 3554 of 2020.
5. While so, the Petitioners knowing fully well about the dispute between the parties and also the criminal case pending against his vendor Mr. Iqbal, entered into two agreements of sale dt. 06.04.2016 and 13.02.2017, respectively, and agreed to purchase properties including the property belonging to the 2nd Respondent. Ultimately, a registered sale https://www.mhc.tn.gov.in/judis/ 4/18 5 Crl.O.P.No.13280 of 2020 deed was also executed in favour of the Petitioners by undervaluing the property on 21.012.2018. The Petitioners also started taking steps to take possession of the property and immediately, on coming to know of the same, the 2nd Respondent has given a complaint and a FIR was registered against Mr. Iqbal (A1) and the Petitioners.
6. Mr. A.R.L. Sundaresan, learned Senior Counsel appearing on behalf of the Petitioners, submitted that the Petitioners are bonafide purchasers and that they had done the due diligence before purchasing the property. The learned senior counsel further submitted that the encumbrance certificate reflected only the sale deed registered in favour of their vendor Mr. Iqbal, in the year 2010 and thereafter, there was no encumbrance on the property. Even the Town Survey Land Register stood in the name of Mr. Iqbal. The major portion of the sale consideration was paid by the Petitioners only by way of RTGS transfer. Infact, at the time when the sale deed was executed in favour of the Petitioners, the civil suit filed by the 2nd https://www.mhc.tn.gov.in/judis/ 5/18 6 Crl.O.P.No.13280 of 2020 Respondent had been dismissed for default on 17.11.2016. it is only after the purchase of the property, the 2nd Respondent took steps to restore the suit. The patta has been transferred in the name of the Petitioners and they have obtained all the necessary permissions to establish an IOCL retail outlet. The learned senior counsel therefore concluded his arguments by submitting that a mere dispute regarding the right and title over the property between the vendor of the Petitioners and the 2nd Respondent cannot automatically infuse any criminal intention against the Petitioners and a dispute which is purely civil in nature is sought to be given a criminal colour and none of the offences mentioned in the FIR are made out against the Petitioners.
7. Per contra, Mr. A. Natarajan, learned State Public Prosecutor appearing on behalf of the 1st Respondent submitted that the Petitioners who are well-educated persons and have a good status in the society intentionally purchased the property knowing fully well that suits are pending between the parties and there is also a criminal case pending against their vendor. The https://www.mhc.tn.gov.in/judis/ 6/18 7 Crl.O.P.No.13280 of 2020 learned State Public Prosecutor further submitted that the Guideline Value of the property works out to nearly Rs.8/- crores and the Market Value will be nearly Rs.16/- crores and the Petitioners intentionally undervalued the property as Rs.4/- crores and the document was referred under Section 47-A of the Stamp Act. This by itself shows that the Petitioners are not bonafide purchasers. That apart, when notice was issued to the Petitioners under Section 41-A of the Code of Criminal Procedure, 1973, (hereinafter referred to as “Cr.P.C.”), they failed to attend even a single enquiry. The Petitioners even after knowing about the defective title over the property, and the criminal case pending against their vendor Mr. Iqbal failed to give any complaint against Mr. Iqbal and that prima facie shows that there is a conspiracy between the Petitioners and Mr. Iqbal (A1). The learned State Public Prosecutor submitted that the case requires a thorough investigation and that there is no ground to interfere with the investigation at this stage and this Criminal Original Petition is liable to be dismissed.
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8. The learned counsel appearing on behalf of the 2nd Respondent adopted the arguments of the learned State Public Prosecutor and submitted that the Petitioners have clearly indulged in grabbing the property belonging to the 2nd Respondent.
9. This Court has carefully considered the submissions made on either side and the materials available on record.
10. It will be of significance to take note of the manner in which the 2nd Respondent and the vendor of the Petitioners are tracing their title to the subject property. This is based on admitted facts and documents relied upon by either side. For the sake of clarity, the derivation of title is presented in a tabulated form hereunder:
https://www.mhc.tn.gov.in/judis/ 8/18 9 Crl.O.P.No.13280 of 2020 Title derivation of the 2nd Respondent and Mr. Iqbal (A1) pertaining to the Subject Property in Old S. Nos. 8/4, 8/1B Part, Old T.S. No. 5/1 Part.
Title derivation of Mrs. K. Vanishree Title derivation of Mr. Iqbal Deed of settlement for an extent of 20 grounds Originally owned and possessed by Mrs. and 1203 sq. ft. in S. Nos. 8/1 and 8/2, Mr. Shah Lakshmiammal (alias) Shanbagalakshmi, Shivaraj Manchalal, dt. 30-09-1946, Doc No. measuring an extent of 2.47 acers, forming 3086 of 1946. part of larger extent of land measuring 7 acers and 7 cents made up of 5.96 acers in S. Nos. 9/3 and 1.11 acers in S. No.9/1 Partition deed dt. 17.03.1956 between Deed of Settlement in favor of her son Mr. Yarllagada Vennancha Choudhary and his S.A. Ramalingam vide deed of settlement brother Yarllagada Ranganayakallu, each dt. 08.07.1971, registered as d. No. 4497 of allotted one half. 1971 with an extent of 6 grounds and 532 D. No. 2685 of 1962, date. 30-9-1962, Sq. Ft. being a portion of larger extent of extent of 5 grounds and 2111 sq. ft. sold to land in S. Nos. 9/1 Part and 9/3 Part.
B. Padmini. Patta in favor of
Mr. Ramalingam- 1979
(date not clear)
Further sale of the 5 grounds and 2111 sq. ft. by Vide deed of Simple Mortgage dt. Mrs. Padmini to 3 others: 14.09.1973, registered as D. No. 6009 of 1973, Mr. Ramalaingam created a
1. 1 ground and 8.75 sq. ft. to mortgage in and over the northern portion Mr. TS Mohanarangam.
of the said property, being vacant land measuring an extent of 9090 sq. ft. or
2. 1 ground and 200.75 sq. ft. to thereabouts (9101.47 as per Patta), SS. Perumal.
comprised in Old S. Nos. 8/4, 8/1B Part,
3. 3 grounds and 1902 sq. ft. sold to Vani 9/1, 9/3, Old T.S. No. 5/1 Part, New T.S. Enterprises vide Doc. No. 2944 of 2970, dt.
No. 5/3, Block No. 7, Vada Agaram 16.09.1970.
https://www.mhc.tn.gov.in/judis/ 9/18 10 Crl.O.P.No.13280 of 2020 Village, in favour of Mr. M. Arunachalam. Patta in favor of Vanishree On default of payment, Mr. M. Arunachalam became the owner of the said Also obtained Patta showing the Old S. No. property by virtue of Sections 69 and 69A 8/1B part and T.S. No. 5/1 in Block 7 measuring of Transfer of Property Act, 1882.
an extent of 0.08.48.5 hectares in the name of Vani Enterprises, on 16.02.2000. For the very same extent of land.
Ms. Vani Enterprises (Partnership Firm) was By assignment deed dt. 11.03.1980, Mr. M. dissolved and the property measuring 3 grounds Arunachalam assigns all his rights, title, and 1902 sq. ft. was allotted in the name of Ms. interest and claim in favor of Mrs. T. Vanishri- 23.04.1991 Premakumari and T. Chandranatham. Agreement for development of property entered Vide deed of settlement dt. 20.05.2010, into between Mrs. K. Vanishree (complainant) registered as D. 1753 of 2010, Mrs. T. and Ceebros Property Development Pvt. Ltd. on Premakumari settled 50% of her undivided 17.09.2001. share, title and interest forming part of the schedule property to and in favor of her sister, Mrs. T. Chandranatham.
Orders dt. 15.07.2008, passed by Hon’ble Mistake in deed of settlement dt. Madras High Court in OSA No. 42 of 2005 20.05.2010, registered as D. 1753 of 2010 filed by Ceebros Property Development Pvt. with regards to T.S. No. stands rectified Ltd. for recovery of monies against Ms. as T.S. 5/1 Part in lieu of T.S. No. 9 vide Vanishree and one another. rectification deed dt. 08.06.2010, registered as D. No. 1974 of 2010. Pursuant to this, Mrs. T. Chandranatham becomes the absolute owner. Subsequent to this deed of rectification, Patta is obtained in favour of Mrs. T. Chandranatham dt. 11.06.2010 https://www.mhc.tn.gov.in/judis/ 10/18 11 Crl.O.P.No.13280 of 2020 21.03.2011-Hon’ble High Court Granted Mrs. T. Chandranatham appoints vide D. Injunction in Suit filed by Vanishree in CS 194 654 of 2010, dt. 11.08.2010, a General of 2011 against Iqbal. Power of Attorney in favour of This suit was dismissed for default on 1. Mr. Farook Sherif and 17.11.2016. Thereafter, it was restored on file
2. Mr. A. Thameem Ansari and was transferred to the VIIth Additional Judge, City Civil Court, Chennai and And vide sale Document No. 2751 of 2010, renumbered as O.S. No. 7913 of 2019 and the dt. 12.08.2010, the property is sold to Mr. same is pending.
S. Iqbal.
Iqbal filed a suit in O.S. No.13218 of 2010 th before the XV Assistant City Civil Court, Chennai for the relief of permanent injunction against M/s. Vani Enterprises. On 13.09.2010, Patta obtained in favor of Mr. Iqbal.
Order of DRO, dt. 02.02.2011 directing the Tahsildar to cancel the Patta granted in the name of T. Chandranatham and Iqbal and to restore the Patta in the name of Mr. Raghaveyya Venkatrama Chowdhary, in whose name Patta existed prior to this.
W.P. No. 3641 of 2011 filed by Mr. Iqbal challenging the order of the DRO cancelling the patta in his name. The order was stayed and the writ petition is pending. https://www.mhc.tn.gov.in/judis/ 11/18 12 Crl.O.P.No.13280 of 2020 Crime No. 199 of 2012 on the file of CCB, Chennai is against Sale Deed between Ms. T. Chandranatham and Mr. Iqbal.
The extent of property is, vacant land measuring an extent of 9090 sq. ft. or thereabouts (9101.47 as per patta) in old S. Nos. 8/4, 8/1B Part, 9/1, 9/3, Old T.S. No. 5/1 Part, New T.S. No. 5/3, Block No. 7 Vada Agaram Village, Vada Agaram Division, Aminjikarai Taluk.
On completion of the investigation, final report has been filed before the Chief Metropolitan Magistrate, Chennai and taken on file in CC. No. 3554 of 2020 and the same is pending.
11. The Petitioners came into the scene in the year 2016 when they entered into an agreement of sale with Mr. Iqbal on 06.04.2016, agreeing to purchase certain items of properties which also included the subject property for a total sale consideration of Rs.4/- crores. The sale deed came to be executed in favour of the Petitioners by Mr. Iqbal on 21.12.2018. A careful reading of the sale deed shows that the title has been derived in https://www.mhc.tn.gov.in/judis/ 12/18 13 Crl.O.P.No.13280 of 2020 the manner in which it has been explained in the tabulation herein above. Out of the total sale consideration of Rs.4/- crores, more than ninety percent of the sale consideration has been paid by way of RTGS transfer from the bank account maintained by the Petitioners. Thereafter, the patta has also been transferred in favour of the Petitioners. That apart, there was also a name transfer by the Corporation in the property tax records from the name of Mr. Iqbal to the names of the Petitioners, respectively.
12. The FIR has been registered for the offences of making a false document and cheating. In the given facts, without undertaking the exercise of a mini investigation, it has to be seen whether the offence has been made out against the Petitioners.
13. In the present case, there is a dispute regarding the right and title over the subject property between the 2nd Respondent and the vendor of the Petitioners. The vendor of the Petitioners is positively claiming a right and title over the subject property and he believes that he is the owner of the property. At https://www.mhc.tn.gov.in/judis/ 13/18 14 Crl.O.P.No.13280 of 2020 the time when the sale deed was executed, in favour of the Petitioners, and at the time when the parties entered into an agreement of sale, the suit filed by the 2nd Respondent had been dismissed for default and it was restored much later. Therefore, there was no strong or compelling material that was available that could have prevented the Petitioners from purchasing the subject property. The property was free from any encumbrance after it was purchased by Mr. Iqbal in the year 2010. The Sale executed in favour of the vendor viz; Mr.Iqbal of the petitioners, has not been put to challenge before a competent civil court till date.
14. It is now a well settled position of law that even when a document is executed by a person claiming a property which is not his, that does not by itself satisfy the requirements of a false document as defined under Section 464, I.P.C. If it does not satisfy the requirements of Section 464, I.P.C., there is no forgery and if there is no forgery, automatically neither Section 467 nor Section 471, I.P.C. will be attracted. Useful reference can be made to the judgement of the Hon’ble Supreme Court in https://www.mhc.tn.gov.in/judis/ 14/18 15 Crl.O.P.No.13280 of 2020 Mohd. Ibrahim v. State of Bihar reported in (2009) 8 SCC 751, Sheila Sebastian v. R. Jawaharaj and Ors. reported in 2018 (3) MLJ (Crl) 39 and the judgement of this Court in T. Muthuramalingam v. The Inspector of Police, District Crime Branch and Ors. reported in 2018 (4) MLJ (Crl) 392.
15. Even in the extreme case of branding the Petitioners as speculative buyers of the subject property, knowing fully well about the dispute in title over the subject property, that by itself does not amount to an offence of cheating, forgery and making of false document. In view of the pendency of the suit, at the best, the sale in favour of the Petitioners will be subject to lis pendens. It has now been well settled that a transaction hit by lis pendens would not result in the same being rendered void or illegal or of no effect. It will only be subject to the result of the litigation and the purchaser would be bound by the same. Useful reference can be made to the judgement of the Hon’ble Supreme Court in Hardev Singh v. Gurmail Singh (Dead) by LRs. reported in 2007 (2) CTC 78 and T. Ravi v. B. Chinna Narasimha reported https://www.mhc.tn.gov.in/judis/ 15/18 16 Crl.O.P.No.13280 of 2020 in (2017) 7 SCC 342.
16. The allegations made in the complaint by the 2nd Respondent, even if taken as it is, does not make out any offence against the Petitioners. The continuation of the investigation against the Petitioners will be an abuse of process of law and it requires the interference of this Court.
17. In the result, the FIR in Crime No.71 of 2020, pending investigation on the file of the 1st Respondent is quashed insofar as the Petitioners are concerned and this Criminal Original Petition is accordingly allowed. Consequently, the connected miscellaneous petition is closed.
01.03.2021 Index: Yes/No Internet: Yes Speaking Order/Non Speaking order KP ..
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1.The Inspector of Police, CCB II Team XXIII (Land Grabbing Spl Team) Commissioner's Office Building, 132, EVK Sampath Salai, Vepery, Chennai 600 007.
2.The Public Prosecutor, High Court, Madras.
N. ANAND VENKATESH,. J.
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