Madras High Court
Chellamuthu vs State Rep.By on 31 March, 2021
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.O.P.No.13455 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 22.09.2020
PRONOUNCED ON : 31.03.2021
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.O.P.No.13455 of of 2016
in
Crl.M.P.No.6909 of 2016
1. Chellamuthu
2. Velmurugan
3. Umamageswaran ... Petitioners / Accused
Vs.
1.State rep.by
Inspector of Police,
Gobichettipalayam,
Erode District. ... 1st Respondent/ Complainant
2.Dr.B.Premalatha ...2nd Respondent/
Defacto Complainant
PRAYER: Criminal Original Petition is filed under Section 482 of
the Code of Criminal Procedure, to call for the records in Crime
No.351 of 2015 on the file of First Respondent herein and Quash
the same against the petitioners herein.
For Petitioners : Mr.S.Ranjith Kumar
For 1st Respondent : Mr.C.Iyyapparaj
Addl.Public Prosecutor
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Crl.O.P.No.13455 of 2016
For 2nd Respondent : Mr.K.S.Dinakaran, Sr.Counsel
For Mr. Sivakumar
ORDER
This Criminal Original Petition has been filed by the petitioners praying to quash the proceedings in Crime No.351 of 2015, on the file of the 1st Respondent Police.
2. The case of the prosecution, in nutshell, is as follows:-
(i) One Velmurugan, the 2nd petitioner herein, was the lessee under the 2nd respondent, from 2005 to January, 2007. When, he left the leased out building, there was an arrears of rent of Rs.60,000/-, deducting that, from the advance amount of Rs.1,00,000/- paid by him, the 2nd respondent was to pay the balance of Rs.40,000/-. But, to the shock and surprise of the 2nd respondent, all the electrical equipment fitted in the building were dismantled and taken away by him, causing major damage to the tune of Rs.50,000/-. When the 2nd respondent insisted him to refit them and restore the building to the status quo anti and get back the balance of said Rs.40,000/-, A2 accepted to do so, but he Page 2 of 16 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.13455 of 2016 failed to repair the damages and restore the electrical fittings and equipments. Thereafter, A1, father of A2, projected a case as though the 2nd respondent took loan on 02.02.2008, by creating a Promissory Note, to a sum of Rs.1,00,000/-, by the 2nd respondent, in favour of one Chellamuthu, the 1st petitioner herein, by forging the signature of the 2nd respondent, by creating a forged pro-note in the name of 1st petitioner, who is the father of the 2nd petitioner, and filed a suit. The signature of the 2nd respondent found in the Pro-note is the outcome of the clear act of forgery committed by the petitioners collusively. The first petitioner A1 making a claim based on the forged pronote. A2 is the son of A1, A2 was previously tenant under the 2nd respondent. A3-
V.A.Kanagasabapathy and A4-Uma Maheswaran are relatives of A1, witnesses to the forged pronote. Hence, the complaint.
3. The learned counsel appearing for the petitioners would submit that the 2nd respondent borrowed a sum of Rs.1,00,000/- from the 1st respondent for her urgent expenses at Pariyur Vellalapalayam Village in Gobichettipalayam Taluk and executed a promissory note in favour of the 1st petitioner herein on 02.02.2008, in presence of witnesses. Since the 2nd respondent Page 3 of 16 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.13455 of 2016 had not paid interest as well as principal amount, the 1st petitioner sent a legal notice to the 2nd respondent, through his advocate on 15.06.2009. Even after receiving the notice on 16.06.2009, the 2nd respondent refused to pay the interest as well as principal amount, but with false allegations sent a reply. Therefore the 1st petitioner herein has filed a Suit for recovery of money in O.S.No.14 of 2011, before the Sub-Court, Gobichettipalayam and subsequently, it was transferred to the Court of Principal District Judge, Erode and renumbered as O.S.No.510 of 2017.
4. It was further contended by the learned counsel for the petitioner that the 2nd Respondent/ Complainant appeared through her advocate and requested the matter to be posted before Lok Adalat, for settlement. Since the 2nd respondent has not appeared on several occasions, the suit was decreed ex parte on 19.01.2015. The Sub Court, Gobichettipalayam, directed the 2nd respondent to pay the amount of Rs.1,00,000/-, along with 12% interest, which was borrowed from the 1st petitioner, within 2 months from the date of receipt of order. The petitioner submit that the 2nd respoddent thereafter filed I.A. for setting aside ex parte order and the same is pending before Sub Court Gobichettipalayam. Page 4 of 16 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.13455 of 2016
5. The learned counsel for the petitioners further submitted that the signature of the defacto complainant used differ from time to time. Even in the documents submitted by the 2 nd respondent in the court the signature of the defacto complainant differs. Knowing very well that her signature in the promissory note will not match with the sample given by her for Forensic Report. The promissory note was sent to Government forensic Lab, Bangalore, and obtained a report in her favour. Further, the 2nd respondent gave complaint to the respondent police based on the Forensic Report obtained. The Respondent Police mechanically registered FIR against the petitioners herein without looking in to the fact that already a civil case is pending with regard to the very same issue between the same parties. The petitioner further submit that the 2nd respondent has given the very same complaint in the year 2009 before Perumanallur Police. Earlier, the 1st petitioner, during enquiry, appeared before the respondent Police and submitted a written representation informing that already a civil suit is pending before Sub Court Gobichettipalayam and produced the ex parte order obtained against the complainant herein. Based on that representation, the said complaint given by the 2nd respondent was closed.
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6. Continuing further, the learned counsel for the petitioners submitted that the 2nd respondent has again given the very same complaint even though civil case is pending between them for the dispute on the very same promissory note. It is submitted that the FIR is mechanically registered against the petitioners based on the pressure given by the 2nd respondent, which will not hold good and it is liable to be quashed. The complaint is nothing but a counter blast for the suit filed by the petitioners and the same is given only to wreck vengeance and harass the petitioners, with malafide intention, no proper enquiry conducted before registering the FIR. Under the circumstances, the petitioners have filed the instant Criminal Original Petition and claimed the relief to which prayer is made earlier.
7. Refuting the above contentions, the learned Senior Counsel appearing for the 2nd respondent / defato complainant would submit that the 2nd petitioner herein, was the lessee under the 2nd respondent and when, he left the leased out building, there was an arrears of rent of Rs.60,000/-, deducting that, from the advance amount of Rs.1,00,000/- paid by him, the 2nd respondent is Page 6 of 16 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.13455 of 2016 to pay the balance of Rs.40,000/-. But, to the shock and surprise of the 2nd respondent, all the electrical equipment fitted in the building were dismantled and taken away by him, causing major damage to the tune of Rs.50,000/-. When the 2nd respondent insisted him to refit them and restore the building to the status quo anti and get back the balance of said Rs.40,000/-. Though he initially agreed, latter he has not turned up. Further, by forging the signature of the 2nd respondent, the petitioners created a forged promissory note for Rs.1,00,000/-, alleged to have been executed by the 2nd respondent, in favour of the 1st petitioner herein and filed the suit. The signature found in the Pro-note on the face of it is forged, it is the outcome of the clear act of forgery committed by the petitioners collusively. The civil Suit in O.S.No.14 of 2011 before the Sub Court, Gopichettipalayam, by Tr.O.P.No.29 of 2017 the case was transferred to the file of First Additional Sub Court, Erode, by Principal District Judge, Erode, by order dated 11.07.2007. In the civil Suit, the 1st petitioner-Chellamuthu(A1); V.A.Kanagasabapathy(A3) and Uma Maheswaran(A4) were examined as P.W.1 to P.W.3, marked exhibits A1 to A4. The forged promissory note marked as Ex.P1. The 2nd respondent examined herself as D.W.1 and one Syed Asgar Imam, former Assistant Page 7 of 16 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.13455 of 2016 Director, Forensic Sciences Lab, Bangalore, examined as D.W.2. Forged pronote was subjected to Forensic examination and the report C1 marked. From the report, it is proved that the pronote is forged. The petitioners, using the forged pronote had filed the civil suit. Hence, the learned counsel for the defacto complainant, prayed for dismissal of the petition. The learned counsel, in support of his contentions, relied on the Judgments of the Hon'ble Apex court in Iqbal Singh Marwah Vs. Meenakshi Marwah reported in (2005 (4) SCC 370); in C.P.Subhash Vs. Inspector of Police, Chennai reported in (2013 (11) SCC 559); in Goan Real Estate & Construction Ltd., Vs. Union of India reported in (2010 (5) SCC 388); in Pubjab National Bank Vs. R.L.Vaid, reported in (2004 (7) SCC 698); in Union of India Vs. K.S.Subramanian reported in (1976 (3) SCC 677) and in Subhash Chandra Vs. Delhi Subordinate Services Selection Board reported in (2009 (15) CC 458).
8. The learned Additional Public Prosecutor appearing for the 1st respondent Police, on instructions, would submit that based on the complaint given by the 2nd respondent, the 1st respondent Police registered an FIR in Crime No.351 of 2015 and the Page 8 of 16 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.13455 of 2016 investigation is yet to be completed. He would further submit that the allegations made in the complaint prima facie satisfy the essential ingredients of the offence of forgery and the FIR is not lodged with any mala fide intention to wreck vengeance or to cause harm to the petitioners. It is a police investigation, hence there is no question of motive. Therefore, the learned Additional Public Prosecutor prayed that at this stage, this Court not to interfere with the investigation. Further, due to pendency of the above quash petition, investigation is stalled. On dismissal of the quash petition, the respondent police would complete the investigation within a time frame. Further, specimen signatures from the petitioner and one V.A.Kanagasabapathy to be obtained, depending upon the petitioners' co-operation, the need for custodial interrogation to be decided and sought.
9. I have considered the rival submissions advanced by learned Counsel for the parties and gone through the FIR impugned. I have also gone through the judgments cited by learned Counsel for the parties.
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10. The instant FIR has been lodged by the 2nd respondent / defacto complainant, in which, she alleged that the 2nd petitioner was the lessee under the 2nd respondent and he paid a sum of Rs.1,00,000/- as advance. When, he left the leased out building, there was an arrears of rent. Further, the 2nd respondent, dismantled all the electrical equipment fitted in the building and taken away, causing damages. When questioned, though he initially agreed, latter there was no reply by the 2nd petitioner. Further, to her shock and surprise, the 2nd petitioner filed a Suit, alleging that a Promissory Note, to a sum of Rs.1,00,000/- alleged to have been executed by the 2nd respondent, in favour of one Chellamuthu, the 1st petitioner herein, and she has not paid the amount. According to the 2nd respondent, the signature found in the pronote is not of her and the same was proved in the Forensic Report, in her favour. armed with the Forensic Report, the 2nd respondent lodged the complaint before the 1st respondent Police, which was registered in Crime No.351 of 2015, for the alleged offence under Sections 120-B, 420, 468 and 471 of IPC. Page 10 of 16 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.13455 of 2016
11. The civil Court proceedings initiated by the 1st petitioner herein in O.S.No.510 of 2017, the Judgment has been delivered after full-fledged trial by the learned First Additional Sub Judge, on 20.09.2019. In the suit proceedings, the first petitioner had examined himself as P.W.1. The 3rd petitioner as P.W.3 and the 3rd accused as P.W.2 and 4 exhibits have been marked of which Ex.A1 is the forged promissory note. The defacto complainant had examined as D.W.1; D.W.2 is the Assistant Director of Government Forensic Sciences Lab, Bangalore. The promissory note subjected to Forensic study. From the Forensic report, which is marked as Ex.C1, dated 11.10.2013. It is proved that the signature found in the promissory note is not that of the 2nd respondent / defacto complainant. The 1st petitioner had filed the civil suit based on the forgery promissory note. The forged promissory note is produced by the 1st petitioner. The first petitioner is none other than the father of the 2nd petitioner/A2. It is seen that A2 was a tenant under the defacto complainant / R2, during the period 2005 to January 2007 and while vacating, he has caused damages to the tune of Rs.59,000/- and had a rental due of Rs.60,000/-. The defacto complainant insisted A2 to rectify the defects and restore Page 11 of 16 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.13455 of 2016 the electrical equipment and accessories. This dispute is from January 2007.
12. In such circumstances, execution of any promissory note on 02.02.2003 by the defacto complainant by availing loan from A1 is cannot be true. Further, from the legal notice issued for the demand for the promissory note dated 15.06.2009 by A1. It is clearly mentioned that R2 executed the promissory note in favour of the 1st petitioner. His stand is consistent even before the suit, as well as in his evidence, his admission is that the promissory note was executed and handed over by the defacto complainant. The evidence of the attesting witnesses viz., A3 and A4 in the civil Suit, who are relatives of A1 and A2, both categorically deposed that the defacto complainant signed the pronote, in their presence. Thus, the signing of pronote in the presence of A1, A3 and A4 and handing over to A1 is the admission of these witnesses. The pronote now proved to be forged. The defacto complainant sent a reply denying execution of any pronote by reply dated 18.06.2009, which is specifically denied. In the civil suit, the presence of A3 and A4 also doubted. No person in normal circumstances, who extend any loan to the person with whom his own son has got Page 12 of 16 https://www.mhc.tn.gov.in/judis/ Crl.O.P.No.13455 of 2016 disputes with regard to return of advance amount and for the damages, caused.
13. The Forensic Report from the Government Forensic Lab, Bangalore, confirms the forgery. The forged document is in possession and produced by A1 in this case. A2 has a motive; A3 and A4 are relatives, who are parties to the forged documents. The investigation in this case has now commenced. Admittedly, in the earlier complaint, no FIR was registered, only enquiry conducted and closed. In view of the same, the registration of the FIR, commencement of investigation is proper and lawful. In view of the same, there is nothing to find fault in registration of the present FIR. The investigation has been stalled due to pendency of the present Criminal Original Petition. Finding no merits in the contention of the petitioners and also finding prima facie materials to register the FIR, and proceed with investigation against the petitioners, this Court is not inclined to quash the proceedings.
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14. In fine, this Criminal Original Petition stands dismissed. The Investigation Officer is directed to conduct the investigation by giving top priority to complete the investigation within the stipulated time, as the proceedings in Crime No.351 of 2016 is pending for the past six years. Consequently the connected miscellaneous petition is also dismissed.
31.03.2021
Index : Yes/No
Internet : Yes/No
MPK
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Crl.O.P.No.13455 of 2016
To
1. The Inspector of Police,
Gobichettipalayam,
Erode District.
2.The Public Prosecutor,
High Court, Chennai.
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Crl.O.P.No.13455 of 2016
M.NIRMAL KUMAR, J.
MPK
Crl.O.P.No.13455 of of 2016
31.03.2021.
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