Madras High Court
Narayandas Kishandas vs State By The Inspector Of Police on 5 August, 2022
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.O.P.Nos.28084 & 28085 of 2007
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 30.09.2020
PRONOUNCED ON : 5.08.2022
CORAM:
THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR
CRL.O.P.Nos.28084 and 28085 of 2007
and
CRL MP No.1 of 2007
1.Narayandas Kishandas
2.Sunil Narang,
3.Bharath Narang,
4.N.Sonali
5.N.Anmol ... Petitioners / in
Crl.O.P.No.28084 of 2007
6.Ramadevi
7.K.Sayaji Rao,
8.S.P.Murali Mohan Rao,
9.P.Naganandhini ... Petitioners / in
Crl.O.P.No.28085 of 2007
Vs.
1.State by the Inspector of Police,
Central Crime Branch – XXI Team,
Office of the Commissioner of Police,
Egmore, Chennai – 600 008. ... 1st Respondent / Complainant
in both Crl.O.Ps
2.Prasad Properties & Investment
Pvt Ltd.,
No.3, Sarangapani Street,
T.Nagar, Chennai – 600 017,
Represented by its Director,
Mr.A.Manohar Prasad ... 2nd Respondent /
in both Crl.O.Ps
*(R2 impleaded vide order of the
Court dated 05.08.2022)
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https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.28084 & 28085 of 2007
COMMON PRAYER: Criminal Original Petitions filed under Section 482
of the Code of Criminal Procedure, to call for the entire records
comprised in C.C.No.4512 of 2007, on the file of the learned XI
Metropolitan Magistrate, Saidapet, Chennai and quash the same.
For Petitioners : Mr.Nithyaesh Nataraj
in both Crl.O.Ps. For M/s.Nithyaesh & Vaibhav
For Respondent-1 : Mr.K.R.Ramesh Kumar
(in both Petitions) Public Prosecutor
For Respondent-2 : Mr.N.R.Elango, Senior Counsel
(in both Petitions)
COMMON ORDER
The Criminal Original Petitions have been filed praying to quash the proceedings in C.C.No.4512 of 2007, on the file of the learned XI Metropolitan Magistrate, Saidapet, Chennai.
2. Earlier, the matters were listed before this Court, and this Court by order dated 28.04.2008, allowed the Criminal Original Petitions, against which, the defacto complainant preferred Special Leave Petition before the Hon'ble Supreme Court in SLP Nos.7455 & 7456 of 2008 and Crl.A.No.s217 – 218 of 2014. Leave was granted. On 21.01.2014, the Supreme Court passed an order remitting back the matter to this Court for de-nova consideration, in accordance with law. 2/32 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.28084 & 28085 of 2007
3.Since the issue involved in both these petitions are one and the same, they were heard together and being disposed of by this common order.
4. The gist of the case is that the Company, M/s.Prasad Properties and Investments Pvt.Ltd., purchased a vacant land of 5 Acres, situated at Begampattu Village, Hyderabad, from one Dr.K.Indira, under proper sale consideration. The said land was acquired by Government of Andhra Pradesh under Urban Land Ceiling Act. On coming to know about the acquisition proceedings, A1 / Narayandas Kishandas approached the Directors of M/s.Prasad Properties and Investments Pvt.Ltd., and represented that he will make necessary arrangements to liason with the Government of Andhra Pradesh for releasing the properties from the acquisition proceedings, believing his version, a Resolution passed by the Company at their Registered Office at Chennai, on 07.02.1996, authorizing the 1st accused to represent before the Revenue Department of Government of Andhra Pradesh, original Title Deed handed over to A1, enable him to represent on behalf of the Company to cancel the acquisition proceedings. In the meanwhile, the Company availed loan from M/s.Ind.Bank Merchant Banking Services Limited and M/s.Ind. Bank Housing Ltd., by offering the said property as security. Since the 3/32 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.28084 & 28085 of 2007 loan amount not paid, the Bank took possession of the property. Taking advantage of the Company's Director's personal liability to attend their personal works in respect of the property, the A1 along with A2 and A3 created and fabricated some bogus transaction, alienating the Company's property to other accused, who are the close relatives of A1. A1, under six Sale Deeds. While so, the complainant approached A1, asked to cancel all the deeds and restore the property back to the Company. However, all the accused threatened the defacto complainant with dire consequences. Hence, the complaint.
5. On completion of investigation, the Inspector of Police, CCB, Chennai, filed charge sheet against the A1 to A9 for the offence under Sections 420, 465, 467, 468, 471 ra/w 468 r/w 109 and 120-B IPC., which taken cognizance by the learned XI Metropolitan Magistrate, Saidapet.
6. The learned counsel appearing for the petitioners / accused would submit that no part of the offence taken place within Chennai; the entire property is in Andhra Pradesh; the alleged forgery of the documents happened in Andhra Pradesh; the alleged liasoning for clearance of Urban Land Ceiling issues taken place with Special Officer and Competent Authority, Urban land ceiling at Hyderabad. There is 4/32 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.28084 & 28085 of 2007 absolutely no cause of action arisen in Chennai for entertaining the complaint against the petitioners. Inviting the attention of this Court to the Judgment of the Hon'ble Apex Court in BhuraRam Vs. State of Rajasthan reported in (2008 (11) SCC 103), the learned counsel would submit that when a proceeding lack territorial jurisdiction, the same required to be quashed and the complaint ought to be returned to the complainant. In the present case, the alleged crime and scene of occurrence taken place in Andhra Pradesh, there is no justification for continuation of proceedings at Chennai.
7. Continuing further, the learned counsel submitted that even as per the version of prosecution, A1 named merely as a liaison agent and had no authority to deal with the matter. The petitioner never agreed or consented to act as liaison agent. Hence, the ingredients of entrustment are acutely lacking. A liason agent has dominion over the property would simple be untenable and liable to be rejected. Further, the petitioners paid monies to Urban Land Ceiling Authorities, Andhra Pradesh, totally a sum of Rs.57,79,411/- and Rs.13,50,000/- to Prasad Properties. Thus, it would be absurd and improbable for a liaison agent to make payment, on the contrary, it is the liaison agent who is to be compensated for the services rendered by him. Hence, in the absence of any entrustment or dominion over the property, the impugned proceedings are liable to be quashed.
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8. Further, in Bhajan Lal's case, different situations have been elucidated as to when the inherent power can be exercised to quash the proceeding. In the instant case, the FIR registered pursuance to the complaint of the defacto complainant on 07.03.2007. Without conducting proper investigation, the charge sheet filed within four months of the complaint. When the answer was sought to the order dated 28.11.2018 in the present matter wherein this Court earlier specifically asked the Investigating Officer and the Public Prosecutor to answer as to how a charge sheet came to be filed without having verified the originals and without doing a proper Forensic examination. The final report filed against the petitioners is an abuse of process and is solely done at the instance of the defacto complainant to cover up their own faults and mistakes. There was no proper investigation and the petitioners were shown as absconding accused and the allegations are so improbable.
9. Further, the prosecution case is contradictory because on one hand they say A1 was entrusted with the property and on the other hand, they have also included the offence of Section 420 IPC, saying that the petitioners induced the defacto complainant into handing over of the property. If it is the specific case of the prosecution that there was no 6/32 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.28084 & 28085 of 2007 power of attorney authorizing A1 to create any encumbrance or sale in respect of properties in question, the question of accounting of the sale proceeds at Chennai not at all arise. According to the prosecution, the said Kiran never authorized to execute any document on behalf of the defacto complainant and further there is no position like CEO in the defacto complainant's Company. But, in the Sale Deed, dated, 21.11.2005, executed in favour of one Rama Devi, it has been clearly mentioned that the buyer viz., Prasad Properties and Investments Pvt.Ltd., is represented by its Chief Executive Officer viz., P.Kiran and address given as, 'C-19, Film Nagar, Jubilee Hills, Hyderabad'.
10. Adding further, the learned counsel would submit that the subject matter property in Andhra Pradesh made into 28 plots and for the reasons best known, the petitioners, who are A1 to A9 made as an accused. The other plot owners not proceeded nor made as accused. All the docuemnts before the Urban Land Ceiling Authorities in Andhra Pradesh refer to the petitioner namely A1, as power of attorney holder of the defacto complainant. The defacto complainant not complained about this for obvious reasons because it is only because of A1's efforts that the the property released from ULC authorities. The FIR lodged after huge delay of almost 11 years and there is absolutely no explanation for such delay. The said Kiran continuously addressing authorities and executing 7/32 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.28084 & 28085 of 2007 documents with A1 in Hyderabad. Further, in letter dated 29.04.2000, the Urban Land ceiling Authorities at Andhra Pradesh addressed the said Kiran as Director / Chief Executive Officer and in response to the same, he communicated his reply on behalf of the defacto complainant to the Urban land Ceiling Authorities. The contention that the said Kiran nothing to do with the transaction and never authorized to act on behalf of the Defacto complainant is a fraudulent stand. There is no explanation as to why the said Kiran executed registered document on behalf of the defacto complainant as CEO, in favour of one Vijayalakshmi.
11. Further, the Suits in O.S.No.288 of 2006 and O.S.No.202 of 2008 on the file of the District Court of Ranga Reddy District, Andhra Pradesh and the Writ Petition in W.P.No.954 of 2008, pending before the High Court of Andhra Pradesh etc. In fact in the Suit in O.S.No.288 of 2006, the defacto complainant participated in the proceedings and filed counter affidavit, the suit decreed in favour of the petitioner, and therefore, they cannot take a stand that they are unaware of these proceedings. In fact, the petitioners are the actual affected parties and deserved to be compensated with cost, as per Section 250 Cr.P.C., for the frivolous and malicious prosecution. In the instant case, the A1 spent huge amount of money to the Urban Land Ceiling Authorities in Hyderabad and made payments to the defacto complainant, which is not 8/32 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.28084 & 28085 of 2007 denied by the defacto complainant. The payments made by A1 in favour of defacto complainant is attached in the form of bank account entries issued by Public Sector Bank. The payments made by A1 in favour of Urban Land Ceiling Authorities are unimpeachable documents and are admissible in evidence, as per the Bankers Books Evidence Act, 1891.
12. The learned Senior counsel, in support of his contentions, relied on the following decisions:-
1. The Judgment of the Apex Court in Hari Prasad Chamaria Vs. Bishun Kumar Surekha and Others reported in (1973) 2 SCC 823).
2. The Judgement of the Apex Court in State of Karnataka Vs. Muniswamy and Others reported in (1977) 2 SCC 699.
3.The Judgement of the Apex Court in G.Sagar Suri and Another Vs. State of U.P. And Others reported in (2000) 2 SCC 636.
4. The Judgement of the Apex Court in Hridaya Ranjan Prasad Verma and Others Vs. State of Bihar and Another reported in (2000) 4 SCC 168.
5.The Judgement of the Apex Court in Alpic Fiance Ltd. Vs. Sadasivan and Another reported in (2001) 3 SCC 153.
6.The Judgement of the Apex Court in S.W.Palanitkar and Others Vs. State of Bihar and Another reported in (2002) 1 SCC 241.9/32
https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.28084 & 28085 of 2007
7. The Judgement of the Apex Court in Anil Mahajan Vs. Bhor Industries Ltd, and Another reported in (2005) 10 SCC 228.
8. The Judgement of the Apex Court in Indan Oil Corporation Vs. NEPC India Ltd. And Others reported in (2006) 6 SCC 736.
9. The Judgement of the Apex Court in Inder Mohan Goswami and Another Vs. State of Uttaranchal and Others reported in (2007) 12 SCC 1.
10. The Judgement of the Apex Court in Binod Kumar and Others Vs. State of Bihar and Another reported in (2014) 10 SCC 663.
11.The Judgement of the Apex Court in Rajib Ranjan and Others Vs. R.Vijaykuamar reported in (2015) 1 SCC 513.
12. The Judgement of this Court in N.Anbuselvam Vs. State by Inspector of Poice reported in (2015) (1) MWN (Cr.) 147.
13. The Judgement of the Apex Court in International Advanced Research Centre for Powder Metallurgy And New Materials (ARCI) And Others Vs. Nirma Cerglass Technics Private Limited and Another reported in (2016) 1 SCC 348.
14. The Judgement of the Apex Court in Anand Kumar Mohatta and Another Vs. State (NCT Of Delhi), Department Of Home and Another reported in (2019) 11 SCC 706.
15. The Judgement of the Apex Court in Prof.R.K.Vijayasarathy andAnother Vs. Sudha Seetharam and Another reported in (2019) 16 SCC 739.
16. The Judgement of the Apex Court in Commissioner of Police and Others Vs. Devender Anand and Others reported in (2019) SCC 996.
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17. The Judgement of this Court in Vadivel Vs. Bagialakshmi reported in (1995) 2 MWN (Cri) 55.
18. The Judgement of the Apex Court in Indian Oil Corporation Vs. NEPC India Ltd. And Others reported in (2006) 3 SCC (Cri)188.
19. The Judgement of the Apex Court in Asit Bhattacharjee Vs. Hanuman Prasad Ojha and Others reported in (2007) 5 SCC 786.
20. The Judgement of the Apex Court in Bhura Ram and Others Vs. State of Rajasthan and Another reported in (2008) 11 SCC 103.
21. The Judgement of the Apex Court in Manoj Kumar Sharma and Others Vs. State Of Chattisgargh and Another reported in (2016) 9 SCC 1.
22. The Judgement of this Court in M/s.Nathellasampath Jewellary Ltd, Vs. Hemant Mehta reported in 2020-1-L.W.582.
13. The learned Senior Counsel appearing for the 2nd respondent / defacto complainant would submit that based on the complaint of the defacto complainant, the 1st respondent registered a case in Crime No.109 of 2007, for offences u/s. 420, 465, 467, 468 r/w. 471 of IPC., as against the petitioners herein. On completion of investigation, the 1st respondent filed the final Report before the Learned XI Metropolitan Magistrate, Saidapet, Chennai. The learned Magistrate prima facie, satisfied, taken the final report on file assigning C.C.No.4512 of 2007 and caused notice to the petitioners to subject them for trial. On coming 11/32 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.28084 & 28085 of 2007 to know the proceedings, on the point of Jurisdiction, further on a wrong premise, investigation is pending. On the other hand as on that date, investigation completed, charge sheet filed. the accused filed the quash petitions before this Court in Crl.O.P.Nos. 28084 and 28085 of 2007 and this Court allowed the petitions, by order dated 28.04.2008. As against the said order, the de-facto complainant preferred Special Leave Petition before the Hon'ble Supreme Court in SPL.Nos. 7455 & 7456 of 2008 and Crl.A.Nos. 217-218 of 2014. While granting Leave the Supreme Court, passed an order on 21.01.2014, remitting the matter back to this Court for de-nova consideration.
14. It is submitted by the learned counsel for the defacto complainant that the Company viz., M/s.Prasad Properties and Investments Pvt. Ltd., purchased a vacant land of 5 acres, situated at Begampattu Village, Hyderabad, from one Dr.K.Indira, under proper sale consideration. Subsequently, the said land acquired by Government of Andhra Pradesh under Urban Land Ceiling Act. On coming to know about the acquisition proceedings, the 1st accused viz., Narayandas Kishandas approached the Directors of M/s.Prasad Properties and Investments Pvt. Ltd., represented that he will make necessary arrangements to liason with the Government of Andhra Pradesh for releasing the properties from the acquisition proceedings. Believing his 12/32 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.28084 & 28085 of 2007 version, a Resolution passed by the Company on 07.02.1996, appointing the said Narayandas Kishandas as the Company's representative to liaison with the Government and Revenue Authorities. Thereafter, the original Title Deed handed over to A1, enabling him to represent on behalf of the company to cancel the acquisition proceedings.
15. The learned Senior Counsel further submitted that the documents handed over to the Accused, squarely attracts the basic ingredients of Criminal Breach of Trust. Subsequently, the original documents returned by A1 to the 2nd Respondent, in turn, handed over to M/s.Ind Bank Merchant Banking Services Ltd., a subsidiary of M/s. Indian Bank, as additional security, in the year 2001, by creating the second charge before Registrar of Companies. When the 2nd respondent Company created the 2nd charge, A1 brought the original document from Hyderabad and handed back to the 2nd Respondent/De-facto complainant at Chennai Office. The 2nd Respondent submits that the entire prosecution case rest upon the Resolution passed on 07.02.1996. The Petitioner/1st Accused relying certain Power of Attorney and Development Agreement, executed by one P.Kiran(LW.3) in one document in the capacity as Director, in some documents, as Chief Executive Officer. These documents confirms the case of the prosecution. 13/32 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.28084 & 28085 of 2007
16. It is further submitted that the said Kiran, in his 161 Cr.P.C. Statement states that he is not the Director of the Company; there is no post like CEO in the said Company; he never acted as Director/CEO for the said Company; he has no power or authority to execute any GPA, sale deed or any other documentation on behalf of the Company in respect of the Company properties. He never executed any kind of documents in favour of said Narayandas for sale of the Company's property at Hyderabad. Further, the witness examined by the Prosecution (viz.) A.Manohar Prasad(LW.2) would make it clear that the said Manohar Prasad and his brother Tr.A.Ravishankar Prasad are the only Directors of the company. Till date, no other person given such authority or power. The said Kiran is one of the staff, looking after the Company affairs at Hyderabad. As per the said Board Resolution, the said Narayandas Krishnadas is the only person to represent before the revenue officials on behalf of the company.
17. In so far as the contention of the petitioner the original document not seized, by the Investigation Officer, one Syed Munavar Ali(LW.4), Joint Sub Registrar, Bhavani Nagar, Moosapet, Ranga Reddy District, Hyderabad examined to speak about the documents registered in his office. Even before examination of listed prosecution witnesses 14/32 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.28084 & 28085 of 2007 before the trial Court, the statements and documents collected by the Investigation Officer cannot be tested under Section 482 Cr.P.C. Apart from LW.5, one other witness (viz.) V.Baskaran, Vice President of Kotak Mahindra Bank Ltd., examined by the Investigation Officer, as witness, to speak about the Equitable Mortgage created by the 2nd Respondent in their favour. This statement of witnesses and the documents cannot be brushed aside.
18. Further, with regard to the Payment made to the M/s.Prasad Properties and Investments Pvt. Ltd., and Urban Land Ceiling Authorities to the extent of Rs.57,79,411/- and Rs.13,50,000/- by way of Demand Drafts and cheques in the year 1995, 1996, 1997 and 2005 by A1, those aspects has to be elicited at the time of cross examination of prosecution witnesses. This is nothing but conducting the trial proceedings under the quash petition without being the evidence let in before the Trial Court. The contention of the petitioner that there is no comparison of original documents by the Sub-Register Office at Andhra Pradesh, and subjecting to forensic examination are not required, this arguments contrary to the evidence collected by the 1st respondent.
19. The learned Senior counsel for the defacto complainant, in support of his contentions, relied on the Judgment of the Hon'ble 15/32 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.28084 & 28085 of 2007 Supreme Court in Superintendent & Remembrancer of Legal Affairs West Bengal Vs. Anil Kumar Bhunja & Ors reported in 1974(4) SCC 230, wherein in para 12 it has been held as follows:
“12. To constitute an offence under section 409 I.P.C., it is not required that misappropriation must necessarily take place after the creation of a legally correct entrustment or dominion over property. The entrustment may arise in “any manner whatsoever”. That manner may or may not involve fraudulent conduct of the accused. Section 409, I.P.C., covers dishonest misappropriation in both types of cases:
that is to say, those where the receipt of property is itself fraudulent or improper and those where the public servant misappropriates what may have been quite properly and innocently received. All that is required is what may be described as “entrustment” or acquisition of dominion over property in the capacity of a public servant who, as a result of it, becomes charged with a duty to act in a particular way, or, atleast honestly”.
20. The leaned Senior Counsel for the defacto complainant further submitted that M/s.Kotak Mahindra Bank Ltd., filed a Petition u/s.7 of Insolvency and Bankruptency Code before the Company Law Tribunal, Division Bench, Chennai. In the said petition the Tribunal appointed Interim Resolution Professional, thereafter, the documents and 16/32 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.28084 & 28085 of 2007 connected records of the 2nd Respondent's company taken over by the Interim Resolution Professional, hence, there is a delay in submission of Written Arguments, in accessibility to the documents of the Company, the 2nd Respondent could not produce the payment details made to A1.
21. The learned Senior Counsel for the 2nd respondent / defacto complainant in support of his contentions relied on the Judgement of the Delhi High Court in Vishwanatha Tantri Vs. The State Of Delhi, Nct of Delhi, reported in (2007 (99) DRJ 451) for the proposition that inherent powers under Section 482 Cr.P.C., should be exercised sparingly and with circumspection in rate cases and that too when miscarriage of justice is done. Further, in the Judgement of the Apex Court in Central Bureau Of Investigation Vs. R.S.Pai and Another reported in (2002) 5 SCC 82, for the proposition that there is no specific prohibition for producing additional documents subsequently if some mistake is committed in not producing the relevant documents at the time of submitting the report or the charge-sheet, it is always open to the investigating officer to produce the same with the permission of the Court. Further, the scheme of sub Section 8 of Section 173 makes it abundantly clear that even after the charge sheet is submitted further investigation, if called for, is not precluded. If further investigation is not precluded, then there is no question of not permitting the prosecution to 17/32 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.28084 & 28085 of 2007 produce additional documents, which were gathered prior to or subsequent to the investigation. In such cases, there cannot be any prejudice to the accused.
22. Further, the learned counsel relied on the Judgement of the Apex Court in Asit Bhattacharjee Vs. Hanuman Prasad Ojha and Others reported in (2007) 5 SCC 786, would submit that in the case of fraudulent representation by the accused in pursuance to the conspiracy to commit the offence a part of cause of action may arose within the jurisdiction of one state and the commission of offence might occur in another state. In such cases, the investigating agency in both states have got jurisdiction to investigate in terms of Sections 178 r/w Section 181(4) of Cr.P.C. Further, relying on the Judgement of the Apex Court in Rajeev Kourav Vs. Baisahab and Others reported in (2020) 3 SCC 317, the learned counsel submitted that statement of witness recorded under Section of 161 Cr.P.C., being wholly inadmissible in evidence cannot be taken into consideration by the Court, while adjudicating the petition filed under Section 482 Cr.P.C.
23. The learned Additional Public Prosecutor appearing for the 1 st respondent police would submit that the initial inducement of cheating happened at Chennai and hence, a part of cause of action has arisen 18/32 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.28084 & 28085 of 2007 within the territorial jurisdiction of the first respondent Police and hence, the 1st respondent registered the case. He would further submit that all the points raised by the petitioners cannot be considered herein, and it is a matter of trial, as such, he prayed for dismissal of the petition.
24. I have heard the learned counsels appearing on either side and perused the materials available on record.
25. On perusal of the complaint it is seen that the defacto complainant Company viz., M/s.Prasad Properties and Investments Pvt.Ltd., purchased a vacant land of 5 Acres, situated at Begampattu Village, Hyderabad, from one Dr.K.Indira. Subsequently, it was acquired by Government of Andhra Pradesh, under Urban Land Ceiling Act. One Narayandas Kishandas/A1 approached the Directors of defacto complainant Company, assured to make necessary arrangements to liason with the Government of Andhra Pradesh for releasing the properties. Thereafter, the Company passed a Resolution at their Registered Office at Chennai, on 07.02.1996, authorizing A1 to represent before the Revenue Department of Government of Andhra Pradesh. Thereafter, original Title Deed handed over to A1, enabling him to represent on behalf of the Company to cancel the acquisition proceedings. In the meanwhile, the Company availed loan from 19/32 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.28084 & 28085 of 2007 M/s.Ind.Bank Merchant Banking Services Limited and M/s.Ind. Bank Housing Ltd., by offering the said property as security. Since the loan amount not paid, the Bank took possession of the property. A1 along with A2 and A3 created and fabricated some bogus transaction, alienating the Company's property to other accused, who are the close relatives of A1. While so, the complainant approached A1, asked to cancel all the deeds and restore the property back to the Company, but A1 refused and threatened the defacto complainant.
26. It is an admitted facts that the accused are permanent residents of Secunderabad, Andhra Pradesh. The properties forming subject matter of the criminal case is situated in Ranga Reddy District, Andhra pradesh. The documents executed in the State of Andhra Pradesh and the registration of the sale deeds executed by A1 on the basis of the powers of attorney made at the office of the Sub-Registrar, Bhavani nagar, Moosapet, Ranga Reddy District, Andhra Pradesh. According to the defacto complainant, since the Company has its Registered Office in Chennai, the complaint lodged, cannot be countenanced for the reason that insofar as the jurisdiction of criminal Courts is concerned, it has no nexus to the complaint and does not constitute any cause of action for maintaining the complaint in Chennai. The jurisdiction with respect to cause of action, scene of occurrence, 20/32 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.28084 & 28085 of 2007 witnesses including the accused, is from Andhra Pradesh. Neither the cause of action nor the place of occurrence could bring the case within the jurisdiction of the Magistrate at Chennai. Hence, the charge sheet cannot be tried by the learned XI Metropolitan Magistrate, Saidapet, Chennai. No part of the occurrence as alleged took place within the territorial jurisdiction of Chennai, for institution of the case and therefore the prosecution of the petitioner on the basis of the F.I.R. which was lodged at Chennai, liable to be quashed.
27. The complaint has been lodged by one C.S.Ganesh, Manager, who is the Authorised Signatory of M/s.Prasad Properties and investments Private Limited, whereas the development agreement and the power of attorney singed and issued by M/s.Prasad Properties and Investments Private Limited, signed by one Kiran, son of P.Gopal Rao. The said Kiran is neither the defacto complainant nor an aggrieved person who lodged complaint against the petitioners. Hence, the defacto complainant is not a competent person to file the present complaint on behalf of the Company.
28. Further, on perusal of FIR in Crime No.109 of 2007 and the final report filed in C.C.No.4512 of 2007 would reveal that they do not attribute any specific overt act against the petitioners. In the absence of 21/32 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.28084 & 28085 of 2007 any correlation of the overt act with the alleged offence, liability could not be fastened on the petitioners. Further, the FIR in Crime No.109 of 2007 initially filed under Sections 420, 465, 467, 468 r/w Section 471 of IPC, wherein the final report filed under Sections 467, 468, 471 r/w Section 468 against the petitioners. In the case of forgery, the respondent police ought to have obtained expert opinion, to find out whether there is any truth in the allegation that the General Power of Attorney forged and created and in fact, the alleged original power of attorney deed itself not seized and filed as a document along with the charge sheet. Further it is seen that the 1st petitioner admittedly paid monies to Urban Land Ceiling Authorities, Andhra Pradesh, totalling a sum of Rs.57,79,411 and Rs.13,50,000 to M/s.Prasad Properties, through bank transactions, the Bank Statements produced, which are not seriously objected. Thus, it would be absurd and improbable for a liaison agent to make payment.
29. The case of the respondents is that a criminal conspiracy hatched between the petitioners and the accused in order to grab the property of the defacto complainant, from creating bogus documents of forged power of attorney, using the same, created sale deeds, executed in favour of A5 to A9. A Resolution passed on 10.01.1996, by the 2 nd respondent favouring L.W.3 / Kiran to execute general power of attorney 22/32 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.28084 & 28085 of 2007 and agreement of development for the 5 Acres of land in Ranga Reddy District, Andhra Pradesh. According to L.W.2, the Director of 2nd respondent, L.W.3 / Kiran has no authority to execute any document in respect of the Company's property.
30. It is seen from the typed set of papers, subsequent to the Resolution and authorization by the Company, L.W.3 / Kiran executed a Development Agreement, dated 24.01.1996, a registered documents in favour of A1. As per the terms and conditions of Agreement, A1 designed as Developer, who given rights to the developer, to develop the said property. As per the agreement A1 was given a right to deal with the Authorities to get released the properties from Urban Land Ceiling at Hyderabad and all expenses incurred to be paid by them. Added to it, he has also given power to develop the property, lay a lay out and get approval form the Hyderabad Urban Development Authority (HUDA) and from the concern departments to provide all the infrastructure to deal with the flats. For the initial expenditure Rs.5,00,000/- paid as interestfree refunded deposit, by way of cheque, dated 23.12.1995.
31. The agreement in uncertain terms giving all powers to the first petitioner. Further, the 2nd respondent agreed to pay the developer 5% of the gross sale proceeds, as commission, for the service provided by 23/32 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.28084 & 28085 of 2007 the developer, for developing and marketing the said land. Further, the developer(A1) to remit the 2nd respondent the sale proceeds of the said property. While giving commission of 5%, the initial payment of Rs.5,00,000/- would be deducted. Further, R2 would register the said property in favour of the petitioner. L.W.3 / Kiran executed a General Power of Attorney, on 06.02.1996, which cannot be disputed. This General Power of Attorney is a registered document, as Document No.784 of 1996. The conditions in the said document is that A1 / power of attorney to maintain proper accounts of the property. With the developer agreement power of attorney / A1 dealing with the property appearing before the concern authorities viz., Special Officer, Competent Authorities, Urban Land Ceiling at Hyderabad, executed requisite Memorandum and also the mortgage deed created in lieu of laying the road, water supply, electrical line, formation of drains, earmarking plots for public community to carry-out under APM Act. This document executed by L.W.3 / Kiran. He also executed indemnity bonds along with affidavit to the authorities. This is during the year 1996.
32. The Urban Development Authority, Hyderabad, written to L.W.3 / Kiran informing about the instructions received from the Government of Andhra Pradesh with regard to the 2nd respondent's property at Begampattu Village, Hyderabad, by communication, dated 29.04.2000. 24/32 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.28084 & 28085 of 2007 The said Kiran given a letter, dated 08.02.2001, on behalf of the 2nd respondent to the petitioner, who is also managing partner of Asian Finance Company, Secunderabad giving authority to the first petitioner for development of the property and also referring to the developer agreement and power of attorney executed by the 2nd respondent. In the letter, the 5% commission of the sale proceeds reiterated.
33. There is an admission with regard to sale deeds executed in favour of the said Vijayalakshmi. In response to the notice issued by the Special Officer, Competent Authority, Urban Land Ceiling, Andhra Pradesh, the said Kiran, as Director, by letter dated 02.06.2000, requested for deferment of personal hearing due to ill health. Further, the said Kiran also filed his detailed objections to the Competent Authority on behalf of the 2nd respondent, on 28.11.2003 why the property cannot be attached by the Authorities, invoking the Urban Land Ceiling Act. The petitioner / A1 remitted an amount of Rs.47,90,000/- to the Special Officer and Competent Authority, Urban Land Ceiling, as general power of attorney of the 2nd respondent pursuant to G.O.Ms.No.455, dated 29.07.2002, the payments were made through pay order, the same is confirmed by the Bank Statement and documents. 25/32 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.28084 & 28085 of 2007
34. The Asian Finance Company Limited wherein A1 is the managing partner, by way of cheque, dated 23.04.1996, made a payment of Rs.3,50,000/-, to the 2nd respondent The Bank statement of the first petitioner for the period 20.12.1995 to 10.02.1996 reflects there payments made to the 2nd respondent, which are not seriously objected. All the payments reflects in the bank statements and records. Thus, the developer agreement, power of attorney given in favour of the first petitioner acted upon and communications exchanged between the fist petitioner and R2, L.W.3 / Kiran of R2 participating along with first petitioner, submitting and executing documents before the competent authority.
35. Finally, the Government of Andhra Pradesh granted exemption to the property of the 2nd respondent by G.O.Ms.No.138, dated 08.02.2006. In the Government Order, the 1st petitioner is recorded as general power of attorney of the 2 nd respondent, who dealt with the property of the 2nd respondent. Following the G.O., the competent authority made an endorsement and passed an order dated 16.03.2006, against the first petitioner recorded and referred as general power of attorney holder of 2nd respondent. Thus, in unequal terms, A1 as general power of attorney developer dealing with the 2 nd respondent as well as authorities and taking steps from the year 1996, involved in the project 26/32 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.28084 & 28085 of 2007 from the year 1996 till 2006, representing R2 to the authorities and got the Urban Land Ceiling attachment removed.
36. During this period, there have been several payments made by the 1st petitioner to the 2nd respondent. Except for initial payment of Rs.5,00,000/-, which has been paid at the time of executing of developer agreement, there is no other payment made to the first petitioner to do liasoning work alone. There is no explanation or reason given why A1 made payments to R2 as well as the competent authorities if he acted only for liaisoning alone. It is seen that the first petitioner apart from getting the property relieved from the Urban Land Ceiling, he has to develop the property, make it into plots, sell the same and or which he can deduct 5% as commission. For facilitating the same, the developer agreement and general power of attorney agreement executed. Based on this general power of attorney, the authorities acted upon, received necessary charges and payments paid by the first petitioner.
37. From the year 1996 to 2006, there have been no quarrel when all the statutory restrictions removed and the property became free from encumbrance, salable thereafter the present objections and complaint made. It is seen that the said Kiran cited as L.W.3. In his statement he has not stated anything with regard to alleged 27/32 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.28084 & 28085 of 2007 forgery of general power of attorney or the developer agreement. L.W.2 / Director of 2nd respondent. conveniently kept silent with regard to payments made to the competent authorities by the first petitioner and also remittance of payment to the accounts of the 2 nd respondent. It is seen that there are 28 plots, which have been developed and sold. It is also seen that for one of the plots. a sale deed executed by the 2nd respondent in favour of the said Vijayalakshmi. Thus, developing 5 acres land into plots and selling to the various persons is with the concurrence of R2.
38. Further, the 2nd respondent having authorized the first petitioner to deal with the properties represent them before the authorities and to develop the properties as a lay out and deal with commercially in the year 1996. But retained the original documents with them, taken a loan on the property from Indian Bank. created first charge and thereafter during the year 2001 – 2002 by depositing the original title deed with them. Further, the same property was given as additional security to Indbank Housing Ltd., in the year 2003 – 2004, thereafter, necessary documents / deeds created and Registrar of Companies also informed about the same. At that time, time, the accounts of the 2nd respondent became NPA, SARFAESI proceedings initiated in O.S.No.388 of 2006 before the First Additional Senior Civil 28/32 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.28084 & 28085 of 2007 Judge, Ranga Reddy District, Andhra Prades and W.P.No.954 of 2008 filed by the subsequent purchaser, including two of the petitioners herein against the 2nd respondent / defacto complainant.
39. L.W.2 had filed a counter affidavit in I.A.No.575 of 2006 in O.S.No.388 of 2006 denying the executing of general power of attorney and joint development agreement. The competent civil court considering the objections of the defacto complainant by its Judgment dated 16.06.2008 found that the developer agreement and the general power of attorney found as registered document and also the payments made by the petitioner to the 2nd respondent as well as the Government towards regularization of land and with regard to the sale deed executed one of the plot owners Vijayalakshmi on 08.02.2001 answered in favour of the petitioner and also confirmed the sale deed executed by the first petitioner and two others.
40. It is seen that the first petitioner executed the sale deed only for 8 plot of the total 28 plots and for this 8 plots. objections made by the 2nd respondent. Thus, the primary complaint that power of attorney and developer agreement are forged cannot sustain for the above reasons. It is seen that the said Kiran / L.W.3 not stated anything with regard to power of attorney and developer agreement. This documents for the 29/32 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.28084 & 28085 of 2007 reasons best known not sent for the Forensic examination. Further, the 2nd respondent is silent with regard to payment made by the first petitioner running to several thousands. If at all the 2nd respondent has got any dispute with regard to reconciliation of accounts and receipt of payment or dues, if any, from the fist petitioners, which is purely in civil nature. Added to it, except fpr the registered office and passing of the Resolution, authorizing L.W.3 / Kiran all other transaction taken place in Hyderabad. In view of the same, this Court finds that continuation of proceedings is abuse of process of law.
51. In the result, the Criminal Original Petitions are allowed and the proceedings in C.C.No.4512 of 2007, on the file of the learned XI Metropolitan Magistrate, Saidapet, Chennai, is hereby quashed. Consequently, the connected miscellaneous petitions are closed.
5.08.2022
Index : Yes/No
Internet : Yes / No
MPK
30/32
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Crl.O.P.Nos.28084 & 28085 of 2007
To
1.The XI Metropolitan Magistrate,
Saidapet, Chennai
2.The Inspector of Police,
Central Crime Branch – XXI Team,
Office of the Commissioner of Police,
Egmore, Chennai – 600 008.
3.The Public Prosecutor,
High Court, Madras.
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Crl.O.P.Nos.28084 & 28085 of 2007
M.NIRMAL KUMAR, J.
MPK
Pre-Delivery Order made in
CRL.O.P.Nos.28084 and 28085 of 2007
5.08.2022
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