Madras High Court
M.Subbiah vs / on 11 November, 2019
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.O.P.No.34424 of 2019
& Crl.M.P.Nos.19055 of 2019 & 3177 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on: 02.08.2022 Pronounced on: 11.08.2022
CORAM
THE HON'BLE Dr. JUSTICE G.JAYACHANDRAN
Crl.O.P.No.34424 of 2019
and
Crl.M.P.Nos.19055/2019 & 3177/2021
M.Subbiah ... Petitioner
/versus/
1.The State Represented by
The Inspector of Police,
E-1, Mylapore Police Station,
Mylapore,
Chennai-600 004.
(Crime No.515 of 2019)
2.S.Jayaprakash ... Respondents
Prayer:- Criminal Original Petition has been filed under Section 482 of
Cr.P.C., pleased to call for the records and quash the First Information Report
registered in Crime No.515/2019 for the offences under Sections 420, 465, 467,
468 and 471 of IPC on the file of the 1st respondent police.
For Petitioner : Mr.A.Ramesh
for Mr.C.Arun Kumar
For R1 : Mr.N.S.Suganthan
Government Advocate (Crl.Side)
For R2 : Mr.N.Manokaran
for Mr.P.Krishnan
https://www.mhc.tn.gov.in/judis
Page No.1/19
Crl.O.P.No.34424 of 2019
& Crl.M.P.Nos.19055 of 2019 & 3177 of 2021
ORDER
This Criminal Original Petition is filed to quash the F.I.R in Crime No.515 of 2019 registered for the offences under Sections 420, 465, 467, 468 and 471 of I.P.C, alleging that on the very same set of facts, the defacto complainant had already initiated a private complaint under Section 200 Cr.P.C and same is pending on being taken cognizance by the learned District Munsif cum Judicial Magistrate at Sriperumbudur in C.C.No.176/2015.
2. In the petition it is contended that, suppressing the pendency of the private complaint and without any new facts or material evidence, the complaint dated 11.11.2019 to the police is lodged and same has been registered and taken up for investigation in Crime No:515 of 2019. The subsequent complaint to the police for the same set of facts while the private complaint in C.C.No.176 of 2015 is pending amounts to forum shopping.
3. It is contended, that in respect of the property admeasuring 3.79 acres at Numbal Village, Poonamallee Taluk, a Civil Suit in O.S.No.131 of 2014 is pending before the learned District Munsif Court, Poonamallee and the Probate petition in the High Court with an attempt to derive title through the https://www.mhc.tn.gov.in/judis Page No.2/19 Crl.O.P.No.34424 of 2019 & Crl.M.P.Nos.19055 of 2019 & 3177 of 2021 Will of one Alamelu Ammal is pending. While so, without title, the defacto complainant is attempting to perfect his title through frivolous prosecutions.
4. The Learned Senior Counsel appearing for the petitioner / accused relying upon the judgments of the Hon'ble Supreme Court rendered in
(i) Sardool Singh and Another -vs- Nasib Kaur [1987 (Supp) SCC 146],
(ii) M.Srikanth -vs- State of Telangana and others [MANU/SC/1446/2019],
(iii) Motilal Songara -vs- Prem Prakash [2013 (3) SCC (cri) 872] ,
(iv)Paamjeet Batra –vs- State of Uttarakhand and others [ 2013 (11) SCC 673 and (v) Kapil Agarwal & ors –vs- Sanjay Sharma [ 2021 (5) SCC 524] submitted that, the real dispute is between relatives in respect of the properties held by late Alamelu Ammal who died on 10/06/2011. She has executed a Will in respect of her properties. Based on the Will dated 29.01.2010, the 2nd respondent / defacto complainant claims right over the property of Alamelu Ammal. Whereas, the petitioner / accused based on the Will dated 21.06.2004 claiming right. Both the parties have filed petition to probate their respective Will. These petitions are converted into Testamentary Original Suits ( TOS) in view of the caveat. Thus, primarily the dispute is civil in nature. Parties have already approached the Civil Court for remedy. Beside for the same set of fact https://www.mhc.tn.gov.in/judis Page No.3/19 Crl.O.P.No.34424 of 2019 & Crl.M.P.Nos.19055 of 2019 & 3177 of 2021 alleging that the accused had settled the property of the partnership firm namely Alamelu Industries in favour of his wife on 23.06.2014 as if the Alamelu Industries is his proprietary concern and the property belongs to him. In his private complaint he has specifically alleged that to usurp the property, the accused has fabricated an antedated document (Retirement Deed from the partnership firm dated 31.12.1993) by forging the signatures of Late Mrs. Alamelu Ammal, so as to falsely portray himself as the sole owner of the property. With these allegations, the private complaint in C.C. No.176 of 2015 is pending before the Trial Court.
5. Further, in the said private complaint, the complainant filed an application in C.M.P.No.1415 of 2016 to direct the accused/the petitioner herein for production of original retirement deed and the dissolution deed dated 04.11.1992 and 31.12.1993 respectively and C.M.P.No.1910 of 2016 to send the photocopy of the dissolution deed for comparison and opinion of the Handwriting Expert. Both these petitions were dismissed by the trial Court assigning valid reasons. Aggrieved by the order of dismissal, the petitioner has preferred Crl.O.P.No.26565 of 2016 and Crl.R.C.No.1625 of 2016 and same are pending in the High Court. Without disclosing these facts, by wanton https://www.mhc.tn.gov.in/judis Page No.4/19 Crl.O.P.No.34424 of 2019 & Crl.M.P.Nos.19055 of 2019 & 3177 of 2021 suppression, the impugned criminal complaint is filed to achieve what could not be achieved through these two petitions directly. The present complaint is nothing but a malicious prosecution and abuse of law. The said suppression of fact in the complaint is fraud on the Court as held by the Hon'ble Supreme Court in Mothilal Songara –vs- Prem Prakash cited supra.
6. Per contra, the Learned counsel for the 2 nd respondent submitted that, the petitioner herein, who fabricated the documents like dissolution deeds and settlement deeds to usurp the properties of Late Alamelu ammal, is shy of producing the original documents for subjecting the documents to the test of genuineness. When the deed of dissolution dated 31.12.1993 purported to have been executed by Alamelu Ammalwas sought to be produced in C.M.P.No.1415 of 2016, the petitioner / accused declined to produce the deed through which he claims absolute right over the property of the partnership firm. At the same time, by producing the fabricated document he has transferred the property of the firm into his name and settled it in favour of his wife Andal through a fraudulent settlement deed dated 23.06.2014. Soon thereafter within two months, on 28.08.2014 his wife, the said Andal has settled the property in the name of her son Senthilkumar.
https://www.mhc.tn.gov.in/judis Page No.5/19 Crl.O.P.No.34424 of 2019 & Crl.M.P.Nos.19055 of 2019 & 3177 of 2021
7. On receipt of the information through RTI, the complainant came to know that the Stamp Papers used for preparation of the dissolution deeds were not in fact purchased by Alamelu Industries as the deed shows, but it was purchased by one Babu on 21.10.1993. Also it has come to the knowledge of the petitioner that, the said dissolution was not informed to the Registrar of Firms. The property has been dealt as partnership firm even after 1994. Suits were filed in the name of Alamelu Industries as partnership firm and also records shows a small portion of the land ( 15 cents ) acquired by the Government in the year 2002 and compensation was received by the partnership firm on 16.11.2006. Thus the fabrication of the dissolution deed by forging the signature of Alamelu Ammal is a fact which has come to the knowledge of the petitioner much after the private complaint. In a private complaint filed under Section 200 Cr.P.C., the power to further investigate under Section 173(8) Cr.P.C., cannot be read into, hence the police complaint on new facts and for fabricating false dissolution deed with forged signatures has to be investigated by the police and those offences cannot be probed in the private complaint. The petitioner taking advantage of the forged document, had earlier got the revenue records mutated in his favour which has been interfered by the Hon’ble High Court in W.P.No11547 of 2017 and W.P.No.20002 of 2020 vide order dated https://www.mhc.tn.gov.in/judis Page No.6/19 Crl.O.P.No.34424 of 2019 & Crl.M.P.Nos.19055 of 2019 & 3177 of 2021 12.01.2022. The parties are directed to maintain the status qua.
8. Learned Counsel for the 2nd respondent further submitted that, in view of the statutory limitations to the private complaint in the proceedings initiated under section 200 Cr.P.C., any new fact or material after filing the private complaint come to light, the only recourse available to the aggrieved victim of crime is to file police complaint with the new facts available. In such case, the Court, which has taken cognizance of the private complaint, can exercise its power under Section 210 of Cr.P.C., and may permit the investigation by the police may go on and stay the proceedings in the private complaint till the completion of the police investigation. Once the police investigation is completed and report filed, then, the report by the police and the private complaint may be taken up together for trial, as if both the cases were instituted on a police report. Instead of resorting to the said procedure established under law, the petitioner under Section 482 Cr.P.C seeks for quashment of the FIR which is under investigation for a complaint which has more than prima facie materials to investigate the forgery and fabrication of dissolution deeds.
9. The learned counsel admit that in the private complaint no https://www.mhc.tn.gov.in/judis Page No.7/19 Crl.O.P.No.34424 of 2019 & Crl.M.P.Nos.19055 of 2019 & 3177 of 2021 doubt, there are reference about the dissolution deeds and doubt about its genuineness. However, unless the suspected documents are secured from the accused and send for Examination of the signatures for comparison with the admitted document; and unless the time, manner and persons who prepared the deeds are probed, the truth will not come to light. For the said purpose, investigation by the police is the only legal mechanism. It is therefore, alleges that the accused is preventing the investigation of the complaint by filing this meritless quash petition.
10. The learned counsel for the 2nd respondent, to buttress his submissions rely on the dictum laid by the Hon’ble Supreme Court in Pal @ Palla –vs- State of UP [ 2010(10) SCC 123] and Kaptan Singh –vs- State of UP [ 2021 (9) SCC 35].
11. Heard the learned counsels appearing for the parties. The records perused.
12. The basic facts which are relevant to this petition are:-
https://www.mhc.tn.gov.in/judis Page No.8/19 Crl.O.P.No.34424 of 2019 & Crl.M.P.Nos.19055 of 2019 & 3177 of 2021 Alamelu Industries, a partnership firm had 5 partners when it came into existence on 26.10.1964. The Firm was registered with Registrar of Firms at Chennai in the year 1965. At that time, Alamelu Ammal and Subbaiah were partners in the firm along with the other 3 partners. In the year 1983 during the months of September and October, under 4 sale deeds 3.79 acres of land in Numbal village was purchased in the name of the partnership firm namely Alamelu Industries.
13. The 2nd respondent/defacto complainant claims that in the Last Will of Alamelu Ammal dated 29.01.2010, she had bequeathed her right and interest in respect of her shares in the different companies including the property measuring 3.79 acres at Numbal Village. After the demise of Alamelu Ammal on 10.06.2011, this Will has come into force, so he has filed OP for probate of the last Will of Alamelu Ammal dated 29/01/2010 and same is pending.
14. Contrarily, the petitioner claims that, on 04.11.1993, two partners of Alamelu Industries opted to retire from the partnership and the surviving partners (Alamelu and Subbaiah) opted to continue the business. Subsequently, on 31.12.1993, Alamelu opted to retire from the partnership firm https://www.mhc.tn.gov.in/judis Page No.9/19 Crl.O.P.No.34424 of 2019 & Crl.M.P.Nos.19055 of 2019 & 3177 of 2021 and as such, the business which was carried as a partnership firm, became a proprietary concern and the assets and liabilities of the firm including the 3.79 acres of land vested with its proprietor Mr. Subbaiah absolutely without any let or hindrance. Therefore with the said recital, he settled the property in favour of his wife Andal by a registered settlement deed dated 23.06.2014. His wife in turn has settled the property in favour of his son on 28.08.2014. In the above transactions, there is no criminal action for to be prosecuted. Further, Alamelu on 21.06.2004 executed a Will which is in fact the Last Will of Alamelu. In the said Will she has bequeathed her properties to several persons. Some in his favour, some in favour of one Natesan (Erstwhile partner of Alamelu Industries) and some of the properties to the defacto complainant and others. The Probate Proceedings in respect of this Will is also pending before the High Court.
15. For the petition to quash, it has to be considered how far the above rival contentions legally sustainable. At the outset, it is the duty of this Court to clear the myth that pendency of civil Suit is a bar / prohibition for criminal complaint. The law of the land does not prohibits registration and investigation of a criminal complaint regarding documents alleged to be forged or fabricated in order to cheat or any usurp property, just because civil suits are https://www.mhc.tn.gov.in/judis Page No.10/19 Crl.O.P.No.34424 of 2019 & Crl.M.P.Nos.19055 of 2019 & 3177 of 2021 initiated and pending. Pendency of civil case will not ipso facto a cover or provides immunity for criminal prosecution. In Paramjeet Batra –vs- State of Uttarkand cited supra, the Hon’ble Supreme Court has observed at paragraph 12, “A complaint disclosing civil transaction may also have a criminal texture. But the High Court must see whether the dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the court.”
16. In the instant case, the civil dispute between the parties is not really in respect of declaration of title, but it is about the true and valid execution of the Wills, purported to have been executed by Alamelu Ammal. The proof of the Will by either of the party, will only establish the execution of the Will. If there is any cloud in the title of any one or more of the property / properties mentioned in the schedule of properties annexed to the Will, the grant of probate will not by default clear the cloud in the title of the testator or the testatrix as the case may be. The title dispute if any, has to be established https://www.mhc.tn.gov.in/judis Page No.11/19 Crl.O.P.No.34424 of 2019 & Crl.M.P.Nos.19055 of 2019 & 3177 of 2021 through proceeding independent of the probate. If a person converts the partnership into a proprietor concern fraudulently through fabricated documents and usurped the property of the partnership firm, it cannot be taken as a dispute essentially of a civil in nature. Therefore, for the said reason the F.I.R impugned in this petition cannot be quashed.
17. The material placed before the Court indicates, the two settlement deeds between the family members of the accused is based on the dissolution deeds dated 04.11.1993 and 31.12.1993. The transfer of disputed property through these two settlement deeds are the subject matter of the Private Complaint pending decision in C.C.No.176 of 2015. However, the validity of these two settlement deeds cannot be independently decided without testing the genuineness of the earlier dissolution deeds through which the petitioner claims title.
18. Hence, the point for determination narrow down to, whether the private complaint taken cognizance by the Judicial Magistrate in C.C.No.176 of 2015 and the FIR on the complaint to the Police which is the subject matter of the Cr.No.515 of 2019 are on the same set of facts and https://www.mhc.tn.gov.in/judis Page No.12/19 Crl.O.P.No.34424 of 2019 & Crl.M.P.Nos.19055 of 2019 & 3177 of 2021 whether the subsequent complaint to the police can be investigated at all, if the private complaint for the same offence is pending.
19. In this regard, the Hon’ble Supreme Court in Kapil Agarwal case cited supra, while settling the issue “whether when on the same allegations, the private respondent-complainant has filed an application under Section 156(3) Cr.P.C, which is pending before the Magistrate, the impugned FIR lodged by the said complainant with the same allegations and averments would not be maintainable, and therefore, the FIR lodged with the police station deserves to be quashed and set aside?”, held as below:-
“ 14. It is the case on behalf of the appellants that as on the same allegations, the private respondent- complainant has filed an application under Section 156(3) CrPC, which is pending before the learned Magistrate, the impugned FIR with the same allegations and averments would not be maintainable, and therefore, the FIR lodged with Police Station Loni Border, District Ghaziabad deserves to be quashed and set aside. The aforesaid cannot be accepted for the simple reason that the Code of Criminal Procedure permits such an eventuality of a complaint case and https://www.mhc.tn.gov.in/judis Page No.13/19 Crl.O.P.No.34424 of 2019 & Crl.M.P.Nos.19055 of 2019 & 3177 of 2021 enquiry or trial by the Magistrate in a complaint case and an investigation by the police pursuant to the FIR.
15. At this stage, Section 210 CrPC is required to be referred to, which reads as under:
“210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence.—(1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.
(2) If a report is made by the investigating police officer under Section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.
(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does https://www.mhc.tn.gov.in/judis Page No.14/19 Crl.O.P.No.34424 of 2019 & Crl.M.P.Nos.19055 of 2019 & 3177 of 2021 not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code.”
16. Thus, as per Section 210 CrPC, when in a case instituted otherwise than on a police report i.e. in a complaint case, during the course of the inquiry or trial held by the Magistrate, it appears to the Magistrate that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation. It also provides that if a report is made by the investigating police officer under Section 173 CrPC and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. It also further provides that if the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of CrPC.
https://www.mhc.tn.gov.in/judis Page No.15/19 Crl.O.P.No.34424 of 2019 & Crl.M.P.Nos.19055 of 2019 & 3177 of 2021
17. Thus, merely because on the same set of facts with the same allegations and averments earlier the complaint is filed, there is no bar to lodge the FIR with the police station with the same allegations and averments.
18. However, at the same time, if it is found that the subsequent FIR is an abuse of process of law and/or the same has been lodged only to harass the accused, the same can be quashed in exercise of powers under Article 226 of the Constitution or in exercise of powers under Section 482 CrPC. In that case, the complaint case will proceed further in accordance with the provisions of the CrPC.”
20. In the instant case even if the contention of the petitioner that the facts in the pending private complaint and in the FIR pending investigation by the police are one and the same, as clarified by the Hon’ble Supreme Court in Kapil Agarwal case, pending trial of the private complaint before Magistrate will not be a bar to lodge the FIR with the police Station with the same allegations and averments. Provided, the subsequent FIR is not an abuse of process of law and same is not lodged to harass the accused. However, if the Court is satisfied that the subsequent FIR is abuse of process of law and it amounts to bring pressure upon the accused, then the inherent power under https://www.mhc.tn.gov.in/judis Page No.16/19 Crl.O.P.No.34424 of 2019 & Crl.M.P.Nos.19055 of 2019 & 3177 of 2021 Section 482 Cr.P.C can be exercised and quash the FIR lodged with police.
21. In the light of the above clarification by the Hon’ble Supreme Court, the point for determination further narrow downs to test whether there is element of abuse of law in the subsequent FIR lodged by the 2nd respondent.
22. The facts of the case in hand reveals the private complaint pending on the file of Judicial Magistrate in C.C.No.176 of 2015 is based on the superficial probe by the individual aggrieved by the effect of the alleged forgery and fabrication of false documents. In other words, the private complaint is about alleged land grabbing through the settlement deeds executed by the petitioner in favour of his wife and in turn his wife settling the property in favour of her son during the within span of two months in the year 2014. Whereas, the impugned FIR is for an incised probe by the police regarding the fabrication and forgery of the dissolution deeds of the year 1993, in view of the new facts which has been come to the knowledge of the complainant received through RTI after the private complaint was taken on file. The complaint is to probe the cause namely, the dissolution deeds which alleged to have been executed by the partners of Alamelu Industries vesting the property absolutely https://www.mhc.tn.gov.in/judis Page No.17/19 Crl.O.P.No.34424 of 2019 & Crl.M.P.Nos.19055 of 2019 & 3177 of 2021 with the petitioner herein. Therefore, the facts are to be probed and it does not prima facie appears to be on the same set of facts or an abuse of process of law or lodged to harass the petitioner.
23. For the reasons stated, the Criminal Original Petition to quash the F.I.R is dismissed as devoid of merit. Consequently, the connected Criminal Miscellaneous Petitions are also dismissed. Not being influence of any observation made in this Court, the Investigating Officer shall proceed with the investigation and file his report. The Judicial Magistrate shall deal the private complaint in accordance with law.
11.08.2022
Index : Yes/No.
Internet : Yes/No.
Speaking Order/Non Speaking Order
rpl
To,
1. The Inspector of Police, E-1, Mylapore Police Station, Mylapore, Chennai-600 004.
2. The Public Prosecutor, High Court, Madras.
https://www.mhc.tn.gov.in/judis Page No.18/19 Crl.O.P.No.34424 of 2019 & Crl.M.P.Nos.19055 of 2019 & 3177 of 2021 Dr.G.JAYACHANDRAN, J.
rpl Pre-delivery order made in Crl.O.P.No.34424 of 2019 11.08.2022 https://www.mhc.tn.gov.in/judis Page No.19/19