Madras High Court
Valliammal vs Inspector Of Police on 24 February, 2015
Author: K.B.K.Vasuki
Bench: K.B.K.Vasuki
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24.02.2015 CORAM: THE HON'BLE Ms. JUSTICE K.B.K.VASUKI Crl.O.P.No.8377 of 2014 and M.P.No.1 of 2014 1.Valliammal 2.C.Madhappan .. Petitioners Vs. 1.Inspector of Police, District Crime Branch, Salem. 2.Divisional Manager, New India Assurance Ltd., No.102, Premier complex, Yercaud Junction Road, Salem. .. Respondents Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure, praying to call for the records and quash the First Information Report registered in Crime No.24 of 2005 on the file of the Inspector of Police, District Crime Branch, Salem. For Petitioners : Mr.Shanmugasundaram, SC for Mr.K.P.S.Palanivelrajan For Respondents : Mr.C.Emalias, APP ORDER
The petitioners 1 and 2, who are arrayed as A1 and A3 in District Crime Branch FIR in Cr.No.24 of 2005 dated 26.3.2005 registered for the offences under sections 420, 468, 417 and 471 IPC, have come forward with this petition to quash the criminal proceedings initiated against them.
2.Few facts, which are relevant for consideration herein, are as follows:
The first petitioner by name Valliammal aged about 50 years met with an accident on 16.6.2002 at about 3.30pm and sustained injuries and the same was followed by the complaint given by one Chinnakutti S/o.Chinnapaiyan, who is none else than the son-in-law of the first petitioner Valliammal to Edappadi Police Station, Salem and the complaint was registered as FIR in Cr.No.1077/2002 on 28.9.2002 for the offences under sections 279 and 337 IPC against the driver of one Hero Honda bearing Regn.No.TN27 C 5134. The complaint proceeds as if the first petitioner along with her son-in-law was going on the left side of the road near Alachamapalayam bus stop and at that time, one motor cycle bearing Regn.No.TN27 C 5134 was driven by its driver rashly and negligently and dashed against his mother-in-law and pushed her aside and the mother-in-law sustained bone fracture and other injuries and was immediately taken to and admitted in the hospital. The FIR was investigated into by the second petitioner who is the then Head Constable/IO in Edappadi police station and culminated as STC.No.1382 of 2002 and the driver of the vehicle appeared and admitted his guilt and in the meanwhile, the first petitioner Valliammal/injured filed a claim petition in MCOP No.1519/2002 before the Motor Accident Claims Tribunal (District Judge), Salem against one Shajakhan who is the driver of the offending vehicle and New India Assurance company Ltd, who is the insurer of the vehicle, arraying them as respondents 1 and 2 in the claim petition. Neither of the respondents appeared to have filed any counter in the MCOP. Whereas, the insurance company appointed their Private Investigator to find out the genuineness of the claim and the Investigator conducted an enquiry and filed the report to the effect that the claim made by the first petitioner herein was false and the insured vehicle was not involved in the accident. In view of such report received from their Investigator, the Divisional Manager of the Insurance company filed the present complaint on 26.3.2005 to the District Crime Branch and the same was registered as FIR in Cr.No.24/2005 on 26.3.2005 for the offences under sections 420, 468, 417 and 471 IPC against the injured Valliammal, rider of Hero Honda Shajakhan and Head constable No.1343 C.Madhappan. Pending investigation into the same, the first petitioner Valliammal filed a memo on 14.6.2005 seeking dismissal of the claim petition as not pressed and on the basis of the same, the claim petition was dismissed on 14.6.2005.
3.The complaint, arising out of which is FIR in Cr.No.24 of 2005, which is sought to be quashed herein, proceeds as if the insurance company conducted investigation and found that the vehicle was not involved in the accident and false claim was made by fixing the vehicle which was not involved in the accident. The defacto complainant in his complaint furnished the particulars about the case regarding the accident, name of the injured/claimant and her advocate and requested the police to take appropriate action to curb the fixing of vehicle to make fraudulent claim. The complaint was received and registered as FIR against the injured/claimant, rider of the motor cycle and the head constable.
4.The petitioners have come forward with the present petition for quashing the present FIR by claiming innocence and by denying the allegations made against them and also on the ground that the allegations do not make out no prima facie offence case against the petitioners.
5.The petition is seriously opposed by the respondents 1 and 2 by alleging conspiracy and by alleging the act of fraud and forgery against the petitioners.
6.Heard the rival submissions made on both sides.
7.The fact that the first petitioner Valliammal met with an accident and sustained injured, is nowhere denied. What was denied in the complaint is the involvement of the vehicle in the accident. It is so denied on the basis of the report of their Private Investigator to the effect that the claimant made a false claim by fixing the vehicle, which was not actually involved in the accident and the claim petition was, pending investigation into the impugned complaint withdrawn by the claimant.
8.Be that as it may, the defacto complainant except alleging that the vehicle was wrongly fixed, not raised any specific allegation against either the injured/claimant or her counsel about the role played by them in fixing the vehicle. As a matter of fact, the falsity of the claim is sought to be raised on the basis of the report of the Private Investigator of the insurance company, which came into existence much after the accident. It is also relevant to point out at this juncture that the rider of the vehicle appeared before the concerned Judicial Magistrate No.II, Sangakiri in STC.No.1382/2002 and admitted his guilt for the offences under sections 279 and 337 IPC and paid a fine of Rs.1250/-. The second petitioner herein is arrayed as third accused only in his capacity as the Investigating officer in the accident case culminated as STC.No.1382/2002. In my considered view, the allegations raised against the petitioners either in the FIR or in the charge sheet are very vague and bald and without specific allegation regarding the role played by them and the materials sought to be relied by the prosecution for establishing and proving the allegations made against the petitioners are not supported by any legally permissible evidence. Apart from that, there is no allegation or material to prove the act of conspiracy between the parties. Further, as the claim petition was already dismissed as not pressed, there is no occasion to prove the falsity of the claim made before the appropriate forum. That being the factual state of affairs, the criminal proceedings initiated against the petitioners is nothing but an abuse of process of law and the same is thus, liable to be quashed.
9.The learned counsel for the petitioners has at this juncture also raised another legal ground by resorting to section 195(1)(a) Cr.P.C and in support of such contention, relied on the decision reported in AIR 1953 SC 293 (Basir-ul-Huq and others v. The State of W.B). It is sought to be argued that as the allegation raised herein constitutes an offence punishable under section 182 IPC giving false information with intent to cause public servant to use his lawful power to cause injury to another person, the complaint ought to have been filed by the public servant concerned under clause (a) of sub section (1) to Section 195. This Court finds legal force in the argument so advanced on the side the petitioners. Here is the case, wherein, the sum and substance of the allegation raised is false claim made before the Motor Accident Claims Tribunal for receiving wrongful gain, which is the offence punishable under section 182 IPC. Section 195 deals with the procedure for lodging the complaint for the purpose of prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. As per Section 195(1)(a), no court shall take cognizance of any offence punishable under sections 172 to 188 (both inclusive) IPC or any abetment or attempt to commit such offence or of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom, he is administratively subordinate. Thus, the combined appreciation of Section 182 IPC and Section 195(1)(a) would, as rightly argued by the learned counsel for the petitioners, go to show that the complaint regarding false claim made before the Motor Accident Claims Tribunal shall be either by the Presiding Officer of the Tribunal or by the public servant concerned or by some other public servant to whom he is administratively subordinate and the complaint given by the Divisional Manager of the Insurance company is hence not maintainable.
10.Further, the legal proposition laid down by the Hon'ble Supreme Court in the decision reported in AIR 1953 SC 293 (Basir-ul-Huq and others v. The State of W.B) cited by the learned counsel for the petitioners is that when an offence is essentially covered by the provisions of Section 195, prosecution for such offence cannot be taken cognizance of by mis-describing it or by putting a wrong label on it. The Apex Court in para 14 of the decision observed that the provisions of this section cannot be evaded by the device of charging a person with an offence to which that section does not apply and then convicting him of an offence to which it does, upon the ground that such latter offence is a minor offence of the same character or by describing the offence as being one punishable under some other section of the Indian Penal Code, though in truth and substance the offence falls in the category of sections mentioned in S.195 Cr.P.C.
11.The learned Additional Public Prosecutor appearing for the respondents at this juncture cited the order passed by me reported in (2012) 4 MLJ (crl) 719 (B.Ranganathan and another v. State) in support of his contention that as the document in support of the false claim was created outside the court and the same was produced during the proceedings before the court, the complaint by the individual is maintainable and the individual complainant is competent to set in motion criminal law against offenders for such act of forgery. In this case, the allegations raised in the complaint are more relating to the offence in respect of false claim before the court concerned by fixing the wrong vehicle and not one for creating false document outside the court and then for producing the same before the court as evidence. As such, the decision rendered by me is hence not applicable to the facts of the present case, when the offence involved herein is essentially covered by section 195 the complaint not by the public servant concerned is not maintainable.
K.B.K.VASUKI, J.
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12.Viewing from any angle, the criminal prosecution laid against the petitioners amounts to abuse of process of law and cannot be hence allowed to continue against them. In the event of the same being allowed to go on, the same would cause serious prejudice to the petitioners.
13.In the result, this criminal original petition is allowed and the FIR in Cr.No.24/2005 pending on the file of the first respondent stands quashed. Consequently, connected miscellaneous petition is closed.
24.02.2015 rk Index:Yes/No Internet:Yes/No To
1.Inspector of Police, District Crime Branch, Salem.
2.The Public Prosecutor, High Court, Madras.
Crl.O.P.No.8377 of 2014SA.1364 of 2004 and CMP.145/2011 The plaintiff in the suit in O.S.273/1983 and the appellant in AS.No.15 of 1992, is the appellant herein. During the pendency of this appeal, the appellant died and his legal heirs are brought on record as the appellants 2 to 6.
The suit is filed by the deceased plaintiff for declaring his title to the suit property and for permanent injunction restraining the defendants from in any way interfering with the plaintiff's peaceful possession and enjoyment of the suit property. The property in respect of which the suit relief sought for is measuring 31 feet east to west and 30 feet south to north, totally 930 sq.ft., forming the backyard portion of the house bearing Door no.16/131, having present Door No.15/27 situated in S.no.922, in Boganapally village, Krishnagiri Town and Taluk, within the following four boundaries: North of 4 = feet lane proceeding east to west from Salem Main Road, East of vacant site purchased by S.M.Prakash, South of vacant land belonging to Dr.Soundaramani and Lilly David and the same was said to have been purchased by the first defendant and west of drum well belonging to the plaintiff with the right to proceed along with the above 4 = feet wide lane and full right in 7 coconut trees situated in the said land. According to the plaintiff, the suit vacant site and other portions adjacent to it formed the backyard portion of the building bearing Door No.131 present Door No.27 at Salem Road, Krishnagiri Town and the same originally belonged to one C.James Manickavasagam Gnanasekaran and the plaintiff purchased the suit vacant site along with 1/3 portion of the building bearing Door no.27 under registered sale deed dated 27.9.1979 and ever since the purchase, the plaintiff had been in possession and enjoyment of the same along with draw well in between the house portion and the suit vacant site and the first defendant, who is the wife of the second defendant, who purchased the house bearing present Door 26 in Salem Road, Krishnagiri Town situated adjacent to the suit vacant site, attempted to dig in the suit vacant portion in order to put up a wall and to enclose the same with the suit vacant portion with the land belonging to them by making a wrong claim.
The suit is seriously resisted by the defendants by totally denying the right, title and interest of the plaintiff over the suit vacant site. According to them, the plaintiff's vendor is entitled to only the building bearing door no.13/130 and not 13/131 having new door no.27 and the ground on which the building stood and the backyard portion bearing Door No.130 lies to the east of the suit vacant site and the site and vacant site lying its west and north formed one block and lies as backyard of the house bearing Door no.13/131 having new No.26.
The trial court on the basis of the oral and documentary evidence adduced before the same, accepted the plaintiff's claim and decreed the suit as prayed for. Aggrieved against the same, the defendants 1 and 2 preferred appeal in AS.15/1992. The lower appellate court on the basis of the same evidence, arrived at the conclusion that the plaintiff failed to produce any document to prove the right of his vendor over suit vacat site and the doucemnt relied on by the plaintiff before the trial court only refered to the settlement made infavour of plaintiff's vendor in repsect of house and ground bearing door no.13/130 and refers to the same as one of the boundaries for the door no.13/131 which is the subject matter of the family arrangement under Ex.B2 among remaining family members of the plaintiff's vendor and the recitals contained in Ex.B4 agreement improbablise the plaintiff claim over vacant site and supports the defendant claim that the suit vacant site does not form part of Door no.13/130, as scuh, on the failure of the plaintiff'sto produce the title deed of the plaintiff's vendor to prove the right of the plaintiff/s vendor over suit site would diesntlte him any make any claim over suit site and accordingly set aside the judgmenet and decree of the trial court and dismissed the suit. Hence, this second appeal by the plaintiff begore this court.
The second appeal is admitted on the following substantial questions of law by this corut:
during the pendency of the second apepal, the plaintiff filed CMP.145/2011 to receive the petition mentioned couemtn as additional evidence at second appeal stage.
Heard the rival submissions and perused the records.
The deceased plaintiff based his claim for titlte possesison and ejoymtn fo the suit item lying on the west of the house bearing door no.13/130 new no.27 which is wrongly mentioned as s.no.131 as well as in Ex.A1 sale deed and in the plaint, under Ex.A1 sale deed and Ex.B2 copy of the deed of agreement entered into between two sons and two daughters of the original owner of the property by name Susai Seshamuthu Swamidoss otherwise known as S.N.David. The original owner of the proeprty Susai Seshamuthu Swamidoees having three daughters and two sons and the plaintiff's vendor is the son of one of the daughters. Ex.B2 dated 3.11.1947 registered as doc.no.137/1948 is the deed of agreement entered into other two daughters and two sons of the original owner. While the subject matter of deed of agreement is door no.13/131 and the same is bounded on south of house no.13/130 and the house and ground in Door No.13/130 is as per the recitals contained in Ex.B2, settled by the original owner during his life time in favour of one James Manickavasagam Gnanasekaran towards his share. Thought the plaintiff relied on Ex.B2, as the title deed of his plaintiff's vendor, the same is rightly not accpeted by the lower appellate court. The lower applate having regard to the nature of the recitals contained in the doucemnt and having regard to admission made in PW1 in the witness box about the document executed in favour of the plaintiff's vendor, rightly found that the failure to produce the settlement deed executed by the original owner in favour of the plaintiff vendor in respect of house and ground bearing Door No.13/130 is adverse to the claim of the plaintiff. The plaintiff having come to the court claiming certain right over the property, on the basis of the sale deed in his favour and the defendants having denied the right of the plaintiff's vendor and having set up title over in their on the basis of their and denied to convey the title over the suit proeprty is bound to establish first his right of his vendor to convey the proepryt and thereafter, the right conveyed to him under Ex.A1 sale deed executed in his name. Though the plaintiff as PW1 would admit in the wtiness box about the existence of one such doucemnt the same is for the best kown to theplaintiff, not produced as one of the evidence on his side. However, the plaintff has at the second appeal stage has produced along with CMP.145 as many as produced 11 documents one orignal sale deed of the original vnedor, gift deed. The plaintiff has to how the documents produced herein are relevant for establishing the right of the plaintiff's vendor over suit vacant site. The plaintiff has not expalined in detail in the affidavit filed in support fo the petition the nature of the docuetns, parties to the docuemtns, relathip of the partites with that of the plaintiff and vendor, the reasonf or not producing the same during tiral etc. in the absence of relevantpartiucalrs and on the failure of the plaintiff ot produce the material document which is the title deed for the plaintiff vendor any aount of other evidence sought to be adduced on the side of the plaintiff may not be any helpful to the palitiff to prove his case and the plaintiff has not hence made out any ground to receive the petition mentioned documents on his side at the second appeal stage.
Coming back to Ex.A1, the same refers to docuemtns registered as doc.no.127/1948 and in Ex.A1 sale deed as th eocuemnt under which the plaintiff's vendor derived the title in repsec tof the suit proepryt which is infact, not true. Ex.B2 document bearing RegnNo.127/1948contain rfers made about the settlement made in favour of the plaintiff's vnedor and the same is not the doucemnt under which theproeprty is settled in faovur of the palittiff vendor and Ex.B2 is the deed of agrement betwene other sons and daughter so fhte roignal owner of the proeprty. Even otherwise, Ex.B2 does not contain the details description of house and gorund in door no.13/130 and it doe snto contain the masreuemtn or boudnaries of the same. In the absence o fthe same, the plaintiff has also not filed any rought plan along with the plaint to identify the suit vacant site on land. Though the trial court has appointed an advocate Commissioner to go and inspect the proeprty and tough AC report and plan are received and marked as C1 and c2 the same are also no help to establish the identity fo the proepryt and to prove the plaintiff's title over the same. As a matter of fact, the plain description of the suit property does not tally with the physical feature shown in Exs.C1 and C2. On the contrary, the defendants have along with the written statement produced a sketch which was marked as Ex.B3. The defendants have in their written statement, claimed the entire portion of EGHJ forming part of which is the disputed vacant site as belonging to them, having been purchased under Ex.B1 from its original owner. As already stated, Ex.B2 is the deed of agreement remaining tow sons and two daughter in respect of door no.13/131. After Ex.B2, one of the sons executed settlement deed in respect of his share under Ex.B2 in favour of the wife of other brother and one of the sisters executed Ex.B6 in respect of her share in Ex.B2 in favour of other sister and the beneficiary under Exs.B5 and B6 jointly executed Ex.B1 sale deed in favour of the first defendant. As per which, the vacant site measuring east west 84feet and north south 74 = feet totally 6090 sq.ft. Along with other right as mentiond in the document is also sold to first defendant.
Further, the plaintiff as PW1 admits in witness box that three persons i.e., plaintiff, S.M.Prakash and another jointly purchased the property and divided the building and vacant site among themselves and the same is reduced into writing. Whereas the plaintiff has not produced the documtn to show the manner in which the proepryt is divded among the three person and further to show in further division, the suit vacant site is allotted to the plaintiff herein.
The combined reading Ex.B2, B5 and B6 would probablise the defendants claim regarding their ownership over the disputed portion. The defendants claim that the plaintiff has owned no property on the west of draw well and the house and ground mentioned inEx.B2 is only the vacnt site lyin gon the west of their building and lying on the est of draw well is also probalised that the recitial contained inEx.B4 is the agreemnt between the plaintiff's vendor and DW2 in respect of the proepryt belonging to the plaintiff's vendor. This agrment ex.B4 was entted into parties prior to the sale of the plaintiff and the agreement was not fortified that the property was subsequently sold to the plaintiff. The parties in Ex.B4 categorically admitted that both the parties do not own any property beyond the draw well and compound wall. The evidence of DW2 who is one of the parites to the docuemtn, clearly supports the defendants' case that theplainttiff;s vendor has no right over the west of disputed portion. That being so, the lower appelalte curt has rightly on due apprecaition of evidene before the same, has rightly found that the plaintiff claim is erroneous and accordingly, reversed the findings of the tiral court and dismissed the suit. The judgment and decreeof the lower appelate court in dismisisng the suit on the failure of the plaintiff to prove the right of the vendor if anyover the suit site to be validly coneyed to him unexer Ex.A1 is rightly found disentiteld to him to claim suit relief and well considered jhdugement of the lwoer apepalte corut is hence warrants no intereferena cen sub question fo law is accoridngly ansered.\ in the result, sa. Is dismised.
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The learned counsel for the petitioners at this juncture raised another legal ground by resorting to section 195A(i) Crl.P.C. It is sougth to be aruged that as the offence alleged herein constitutes an offence under section 182 IPC,giving (false information with intent to cause public by use of lawful to injury) the complaint ought to have been file by the public servant concerned under section 195 i a. this court finds some force in the argument so advanced on the side the petitioners. Here is the case where the sum and substance of the allegation raised is false claim is made before the Motor accident claims tribunal for receiving wrongful gain which is the offence punishabel under section 182 IPC. Section 195 i a Cr.P.C, deals with the procedure for lodging the complaint for the purpose of prosecuting for conducting the public servant for lawful. As per Section 195ia no court shall take cognisance of the offence or abetment or attempt to commit punishabel undr sectin 178 to... both...except on the complaint in the public servant concerned or ...some other public wsho is ... the combined aprecation of 182 and 195ia, would as rightly aruged by the learne cousnel fo rhe petitioners, would go to show that the complaint regarding false claim made before the Motor Accidetn Calism tribunal shall be either by the Presiding Office rof the tribunal or by any other public servant or who are servant and the complaint givne by the divisional manage rof the insruance company is not hence maintinabale.
The learne counsl eof tht eIAr 53 sC 293 for the legal propostiion that when an offence is essentially covered by the 195 theprosecutionfor such offence cannot be taken cognisance by misdescribing or putting a wrong label on it. The AC inpara 14 observed that the provision of the section cannot be evaded ..for wich to which that section will nto apply and convicting... thus upon the ground, later offence is minor offence and describing the offence that one some other secon of the penal offence, though truth and substance the offence false category mention in 195 Cr.P.C. The learned counsel for the respondent at this juncture cited the judgment of mine 2012 MLJ 719, in support of the contention that, as the document in support of the false claim were created outside the court and the same were produced before the court in the proceedings before the court, the complaint by the individual is maintainable and the individual complainant is competent to set of motion for against such act of forgery. In this case, the allegation raised in the complaint is more relating to the offence relating to false claim before the court concerned by fixing the wrong vehicle that one for creating false document. As such, the same is essentially covered section 194 and the complaint not by the public servant concerned is not maintainable and the judgment reported in 2012 4 MLJ is hence not applicable to the facts of the present case.
Viewing from any angle, .........