Madras High Court
F.Sajin Miranda vs The State on 22 July, 2022
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.O.P.No.2853 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.07.2022
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.No.2853 of 2021
1.F.Sajin Miranda
2.J.Mahima ... Petitioners
Versus
The State
Rep. by The Inspector of Police,
CCB-II, Office of the Commissioner of Police,
Vepery, Chennai – 600 007. ... Respondent
PRAYER: Criminal Original Petition is filed under Section 482 of the
Code of Criminal Procedure, to direct the respondent herein to drop the
name of the petitioner from the FIR and file a Final Report as against the
other accused in compliance with the order dated 07.08.2021 in
Crl.O.P.No.8384 of 2020.
For Petitioners : Mr.D.Ferdinand
For Respondent : Mr.A.Damodaran
Additional Public Prosecutor
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https://www.mhc.tn.gov.in/judis
Crl.O.P.No.2853 of 2021
ORDER
This petition has been filed to direct the respondent to drop the petitioners name from the FIR and file a Final report as against the other accused in compliance with the order dated 07.08.2021 in Crl.O.P.No.8384 of 2020 in Crime No.108 of 2019 registered for the alleged offence under Sections 465, 471, 468, 420, 120B and 506(i) of IPC.
2. There are totally 13 accused in this case in which, the petitioners, who are husband and wife, are arrayed as A4 and A5. They are bonafide purchasers of a Flat, to be constructed by the first accused, who is partner of M/S.B.K.Builders and Flat Promoters in the property, owned by the wife of the defacto complainant. The second accused executed power of attorney in favour of the first accused and also entered into a joint venture agreement to develop the said property owned by the wife of the defacto complainant. On the strength of the power of attorney, the first accused entered into an agreement for sale of undivided share and construction of a flat on 21.09.2013. The first accused also 2/9 https://www.mhc.tn.gov.in/judis Crl.O.P.No.2853 of 2021 executed sale deed in favour of the petitioners herein in respect of undivided share of the land allotted to the first accused. Further, the first accused and the second accused failed to deliver the promised flat to the petitioners.
3. Therefore, the petitioners caused notice to both, thereby calling upon them to complete the construction and hand over the flat as agreed by them. In fact, the petitioners lodged a complaint before the respondent. However, the respondent, without registering any FIR on the complaint lodged by the petitioners, registered FIR as against all the accused including these petitioners herein for offence under Sections 465, 471, 468, 420, 120B and 506(i) of IPC.
4. The wife of the defacto complainant owned the land property bearing Plot No.44, comprised in Old Survey No.136, as per Patta No.370, New Survey No.136/8 situated at Sri Chakra Nagar, No.42, Mankadu Village, Sriperumpudur Taluk, Kancheepuram District. The first accused was duly authorized by the wife of the defacto complainant 3/9 https://www.mhc.tn.gov.in/judis Crl.O.P.No.2853 of 2021 to develop flats and sell it to third parties. The land owner also executed power of attorney registered vide Document No.2916 of 2011 in favour of the first accused. The petitioners booked a flat with the first accused, being the builder, to purchase the flat in Flat No.2 on the First Floor having a carpet area of 702 Sq. ft. and super built up area of 972 Sq.ft along with an undivided share of 581 Sq.ft in the land. The total cost of the flat, including the cost of the undivided share, was fixed at Rs.31,59,000/-. At the time of booking, the petitioners had paid a sum of Rs.10,00,000/- and subsequently, the petitioners had paid another sum of Rs.10,00,000/-. The first accused had duly received the amount and acknowledged the same. Pursuant to the said payment, the first accused registered sale deed in respect of undivided share on 21.01.2014 vide Document No.554 of 2014 in favour of the petitioners.
5. As per the agreement, the first accused ought to have handed over the flat to the petitioners within a period of seven months from the date of the Construction Agreement cum Agreement for Sale. However, the first accused had taken several years and finally the first accused 4/9 https://www.mhc.tn.gov.in/judis Crl.O.P.No.2853 of 2021 assured that the flat would be handed over in the year 2017. Therefore, the petitioners caused notice through their counsel to the first accused as well as the second accused thereby calling upon them to hand over the flat within fifteen days from the date of receipt of the said notice dated 06.06.2018.
6. According to these petitioners, they have nothing to do with the alleged allegations made against the other accused persons as they are only bonafide purchasers of the flat. Therefore, the petitioners filed a quash petition to quash the FIR in Crl.O.P.No.8384 of 2020. This Court, by an order dated 07.06.2020, directed the petitioners to produce the documents registered in their favour before the first respondent. On receipt of the same, the first respondent was directed to conduct detailed enquiry, on the enquiry, if the first respondent found that the petitioners are the bonafide purchasers vide registered sale deed after the payment of valuable sale consideration, the first respondent shall drop the name of the petitioners from the FIR and file a final report as against the other accused persons within a period of twelve weeks from the date of receipt of a copy of that order.
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7. According to the petitioners, though the petitioners were ready and willing to produce the sale deed and other related documents before the respondent, to prove that they are the bonafide purchasers and they have nothing to do with the crime committed by the other accused persons, the respondent failed to drop the petitioners name in the FIR.
8. On perusal of the documents annexed in the typed set of papers by the petitioners revealed that the petitioners paid sale consideration and accordingly, the first accused had registered sale deed in their favour. Even till today, the first accused failed to complete the construction and hand over the flat to the petitioners. Insofar as the allegations as against the other accused persons are concered, that relates to execution of power of attorney in favour of first accused; the first accused executing sale deed in respect of undivided shares and thus, there was a dispute between the first accused, second accused and the land owner. The power of attorney executed in favour of the first accused by the wife of the defacto complainant was cancelled on 05.12.2013 vide Document No.16681 of 6/9 https://www.mhc.tn.gov.in/judis Crl.O.P.No.2853 of 2021 2013. Even after such cancellation of power of attorney, the first accused had executed several sale deeds including in favour of the petitioners herein on 12.12.2013 and 21.01.2014. Hence, the complaint.
9. In fact, after cancelling the power of attorney, there was negotiation between the first accused and the complainant and they have entered into a Memorandum of Understanding. Therefore, the petitioners had no knowledge about the cancellation of power of attorney by the defacto complainant and they have bonafidely purchased the undivided share from the first accused.
10. In fact, they have entered into an agreement for sale and construction, while the power of attorney was in force. Therefore, no offence is made out as against the petitioners as alleged by the defacto complainant.
11. In view of the above, the first respondent is directed to delete the name of the petitioners in the FIR registered in Crime No.108 of 7/9 https://www.mhc.tn.gov.in/judis Crl.O.P.No.2853 of 2021 2019 and complete the investigation as against the other accused persons and file a final report within a period of three months from the date of receipt of a copy of this order.
12. Accordingly, this criminal original petition stands allowed.
22.07.2022 Index: Yes/No Speaking / Non-Speaking ata To
1.The Inspector of Police, CCB-II, Office of the Commissioner of Police, Vepery, Chennai – 600 007.
2.The Public Prosecutor, Madras High Court, Chennai.
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