Madras High Court
R.Devadoss vs State By Inspector Of Police on 16 October, 2014
Author: K.B.K.Vasuki
Bench: K.B.K.Vasuki
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.10.2014 CORAM: THE HON'BLE Ms.JUSTICE K.B.K.VASUKI Crl.O.P.No.28716 of 2010 and M.P.No.1 of 2010 R.Devadoss .. Petitioner Vs. 1.State by Inspector of Police, E3, Minjur Police Station, Minjur, Thiruvallur District. 2.Indian Oil Corporation rep. by its DGM 139, Nungambakkam High Road, Chennai-34. .. Respondents Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure, praying to call for the records in Crime No.391 of 2010 on the file of E3, Minjur Police Station, Minjur and quash the same. For Petitioner : M/s.S.Shankar for Mr.P.Muthukrishnan For Respondents : Mr.C.Emalias, APP (R1) Mr.Ravindran, SC for Mr.V.Anantha Natarajan (R2) O R D E R
The petitioner, who is the accused in Cr.No.391 of 2010, pending on the file of the first respondent police, has filed this petition to quash the FIR registered against him for the offences under sections 406 and 420 IPC.
2.The petitioner by name R.Devadoss and one Ramachandraiah were partners of one M/s.Shri Ram Enterprises and doing real estate business. The partnership business was dissolved on 1.4.2000 and thereafter, the petitioner became the sole proprietor of the same. The FIR in Cr.No.391/2010 was registered on 27.8.2010 on the basis of the letter dated 27.8.2010 sent by the Deputy General Manager of the second respondent/Indian Oil Corporation Limited to the office of the Deputy Superintendent of Police, Ponneri and the same was in respect of the sale transactions of the years from 1999 to 2001. All the sale transactions were related to different survey numbers between 1999 and 2001 arranged by M/s.Shri Ram Enterprises, having the petitioner and Ramachandraiah as partners. In all the transactions, M/s.Shri Ram Enterprises represented by the petitioner and Ramachandraiah figured as confirming party. The sale transactions were arranged by M/s.Shri Ram Enterprises in pursuance of the work order placed by the second respondent on 14.9.1998 for purchase of 102.95 acres at the total cost of Rs.5.056 crores under totally 77 sale deeds.
3.It is not in dispute that some dispute arose in respect of validity of sale deeds and the disputes were raised by the land owners in respect of the validity of the power of attorney executed in favour of Shri Ram Enterprises. As a matter of fact, M/s.Shri Ram Enterprises and Devadoss who is the petitioner herein have also filed a suit in OS.No.153/2003 for declaring one sale deed dated 20.3.2000 registered as Doc.No.511/2001 in Thiruvotriyur Sub Registrar Office executed by the plaintiffs in favour of the defendant IOC as null and void, invalid and non est on the ground that the power of attorney dated 24.5.1999 was not executed by the real owner Kesavan Naidu and his wife Nirmala and was a false document by impersonation without the knowledge of the plaintiffs. During the pendency of the suit, the second respondent IOC has through its Deputy General Manager (Operations) sent a complaint to the Deputy Superintendent of Police, on 21.8.2008 to proceed against the offenders in accordance with law.
4.The complaint proceeds as if the second respondent IOC in pursuance of the sale deed executed in their favour, are the absolute owners of the property and have been in possession and enjoyment of the same on the basis of a lawful deed of conveyance. While so, some of the land owners represented that their signatures were forged in the power of attorney and they never authorised the petitioner and Shri Ram Enterprises to deal with their property. It is also alleged that the second respondent IOC was also prevented from entering the site by the erstwhile land owners and the sale deeds were executed by the petitioner R.Devadoss with an intention to cheat, defraud and enrich himself unlawfully and to cause wrongful loss to IOC, thereby, R.Devadoss and J.Ramachandraiah committed the offences punishable under sections 418, 406, 468, 409, 420 and 120 (b) IPC.
5.The complaint was not immediately taken up on file. On other hand, the complainant was called upon to furnish details and in pursuance of the letter from the office of the Deputy Superintendent of Police, Ponneri, the defacto complainant/second respondent sent a letter on 27.8.2010 with more particulars and the same was received and registered as FIR in Cr.No.391/2010 on 27.8.2010, which is now sought to be quashed in this petition.
6.It is contended by the learned counsel for the petitioenr that the letter of the defacto complainant dated 27.8.2010 contains the details regarding transactions in respect of 21 survey numbers and the nature of the alleged act of cheating and fraud committed by M/s.Shri Ram Enterprises. The letter, which was registered as FIR is only the details furnished to the office of the Deputy Superintendent of Police, Ponneri in connection with earlier complaint dated 21.8.2008, as such, the first document dated 21.8.2008 is the complaint and the particulars subsequently furnished by way of letter dated 27.8.2010 are only in the nature of section 161 Cr.P.C statement and FIR registered on the basis of Section 161 Cr.P.C statement is hence not legally maintainable.
7.It is the further case of the petitioner that the second respondent defacto complainant has separate legal department to make due verification and scrutiny of the title and the sale deeds were prepared and executed, only after okeyed by the legal department, as such, the lodging FIR after 10 years from the date of the transaction is nothing but an abuse of process of law. It is also his case that the allegations raised in the FIR constitute a civil dispute and the complaint filed by the second respondent without resorting to civil proceedings, which is barred by limitation, is not maintainable. It is further contended on the side of the petitioner that as the payment towards sale consideration was not made to Shri Ram Enterprises, but made through Shri Ram Enterprises, no question of misappropriation arises herein.
8.Per contra, the learned Additional Public Prosecutor and the learned senior counsel for the second respondent defacto complainant would oppose the relief sought for herein mainly by relying on the nature of the allegations raised in the complaint. According to them, the present case is one, where the dispute gives rise to both civil and criminal proceedings and the criminal case is hence maintainable for the act of forgery and cheating and it is not the case, where the interference of the court is warranted at this stage.
9.Heard the rival submissions made on both sides.
10.The relief sought for herein is, as already stated above, based on legal and factual objections. The first legal objection raised on the side of the petitioner is that FIR registered on the basis of the details furnished in connection with the first complaint, is not maintainable. It is contended herein that the FIR is distinguished from the information received from the statement subsequently recorded. The learned counsel for the petitioner also cited the authority of three judges bench of the Hon'ble Supreme Court reported in AIR 1960 SC 391 (State of Bombay v. Rusy Mistry and another) wherein it is clearly observed by the Apex Court that "the first information report is the information recorded under Section 154 and is an information given to a police officer relating to the commission of an offence. It is also an information given by an informant on which the investigation is commenced and it must be distinguished from information received after the commencement of investigation which is covered under sections 161 and 162 Cr.P.C".
11.In the present case, the second respondent defacto complainant has already sent a detailed complaint to the Deputy Superintendent of Police on 21.8.2008, against the petitioner, regarding the nature of unlawful activity and the defacto complainant has at the end requested the Deputy Superintendent of Police to take the same as complaint on record and to proceed against the offender in accordance with law. In the same letter, the second respondent undertook to furnish documents, if any, in this regard. Accordingly, further information was called for and such information was furnished through by letter dated 27.8.2010 and the same was registered as FIR, which is impugned herein. It is not explained before this court as to what happened to the first information received in the office of the Deputy Superintendent of Police on 21.8.2008. The fact that the same is kept alive is evident from the contents of the letter dated 27.8.2010, which proceeds as if the details are given further to the complaint dated 21.8.2008 and pursuant to the letter from the office of the Deputy superintendent of Police, Ponneri.
12.As rightly argued by the learned counsel for the petitioner, the earlier complaint dated 21.8.2008 is the complaint and the present complaint is only further statement, furnishing more details, as such, the earlier complaint dated 21.8.2008 ought to have been registered as FIR and the details furnished by way of letter dated 27.8.2010 ought to have been treated as section 161 Cr.P.C Statement and the present course adopted by the respondent police in registering the letter containing further details is hence, to greater extent, in violation of the principles laid down in the judgment reported in (2014) 2 SCC 1 (Lalita Kumari v. Government of Uttar Pradesh and others), wherein, the Constitution Bench of the Hon'ble Apex Court issued the following directions relating to registration of FIR, which read as follows:
"120.In view of the aforesaid discussion, we hold:
120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
120.2.If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
120.3.If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
120.4.The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers, who do not register the FIR if information received by him discloses a cognizable offence.
120.5.The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
120.6.As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(a)Matrimonial disputes/family disputes.
(b)Commercial offences
(c)Medical negligence cases
(d)Corruption cases
(e)Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions, which may warrant preliminary inquiry.
120.7.While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case, it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
120.8.Since the General Diary/Station Diary/Daily Dairy is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above. On this score alone, the FIR registered on the basis of the details furnished in the course of enquiry on the earlier complaint, is liable to be quashed.
13.On facts, the first complaint dated 21.8.2008 would proceed to say that after the transactions were completed, some of the land owners represented that their signatures were forged in the power of attorney and they never authorised R.Devadoss and Shri Ram Enterprises to deal with their property and IOC were also prevented from entering the land. What is the nature of the act of cheating and fraud committed by the proposed accused is not specifically alleged in the earlier complaint dated 21.8.2008 and the details contained in the letter dated 27.8.2010 are about the sale transactions in respect of 20 survey numbers in respect of which alleged act of cheating and fraud is committed.
14.The learned counsel for the petitioner, in the course of his argument, submitted the remarks for the allegations raised in respect of sale transactions relating to 20 survey numbers. For better understanding, the allegations contained in the further letter dated 27.8.2010 and the remarks furnished to them on the side of the petitioner are as follows:
(i)Allegation: As per Encumbrance Certificate, one P.Babu has sold the property in favour of R.Krishnamurthy through his power of attorney agent R.Devadoss vide sale deed Doc.No.1560/97 dated 02.04.1997. Subsequently, the said property was sold to the vendors of IOC through different sale deeds executed by Babu through his power agent R.Devadoss.
Remarks: The sale deed in favour of R.Krishnamurthy was subsequently cancelled on 30.5.1997 vide doc.no.2076/1997. As already stated above, there was the legal department and it would have been verified by the legal department of IOC and therefore, the suppression of facts does not arise herein.
(ii)Allegation: As per Encumbrance Certificate and A1 Register of Ponneri Taluk Revenue Office Records, R.Vivekanandan was the patta holder and he purchased the property from one Selvaraj.
Remarks: There was no encumbrance or adverse claim and R.Vivekanandan's name was retained in the Register, by failure of the mutation in the revenue records.
(iii)Allegation: When there were separate power of attorneys, one power of attorney was used for execution of all sale deeds in respect of 3.72 acres of land in favour of IOC. Further, in respect of sale deed vide Doc.no.457/2001, the power of attorney was not submitted and number of the power of attorney was not mentioned in the sale deed.
Remarks: (i)separate Power of attorneys were furnished to IOC and the legal department of IOC, while drafting the sale deed, failed to mention the same and therefore, it is the failure on the part of the legal department. (ii)The petitioner submitted all the Power of attorneys to IOC and the same was acknowledged by the defacto complainant and the failure to mention the same is by the legal department.
(iv)Allegation: In respect of sale deed in Doc.No.459/2001, Original or Certified copy of the power of attorney executed by the 3rd party by name K.Andrews was not produced. In respect of sale deeds vide Doc Nos.460 and 461/2001, power of attorney was not produced and the number of power of attorney was not mentioned in the sale deeds.
Remarks: (i)separate Power of attorneys were furnished to IOC and the legal department of IOC, while drafting the sale deed, failed to mention the same and therefore, it is the failure on the part of the legal department. (ii)The petitioner submitted all the Power of attorneys to IOC and the same was acknowledged by the defacto complainant and the failure to mention the same is by the legal department.
(v)Allegation: A third party by name Baskaran filed a suit in OS.No.43/2001, claiming ownership of the property on the strength of the sale deed, in respect of one of the plots in the lay out made out in subject land executed by the power of attorney in favour of the original owners.
Remarks: The lay out is unapproved lay out and is not revealed in the encumbrance certificate and the accused made the verification of all the documents and thereafter, executed the sale deed in favour of IOC and the legal department of IOC scrutinised the documents and stated no query in this regard.
(vi)Allegation: A sale deed was signed by the petitioner herein for ELE Farms (P) Ltd and not signed as POA of vendors. The first vendor Smt.Nalini is not an executant of the sale deed vide Doc.No.475/2001.
Remarks:It is only omission and negligence on the part of the Sub Registrar Office.
(vii)Allegation:one K.M.Hari and others claiming themselves to be the owners of S.no.1386/2, filed a suit in OS.No.276/2007 on the file of the District Munsif Court, Ponneri. IOC has also filed a case in OS.No.261/2007.
Remarks: The purchase in favour of the plaintiffs in O.S.276/2007 is subsequent to the sale deed executed by the petitioner in favour of IOC during 1999.
(viii) to (xiii) Allegation: sale deeds are executed in favour of IOC by suppression of prior sale of plots by the vendors.
Remarks: As the prior sales are in respect of small extent of unapproved lay out, it is not reveled in the encumbrance certificate and is also not disclosed by the accused. Further, there is no mutation in the name of the individuals and after verification of the documents, the accused executed sale deeds in favour of IOC and the legal department of IOC scrutinised the documents and stated no query in this regard at the time of registration.
(xiv) Allegation: One Perandalammal filed a suit before the City Civil Court, Chennai, questioning the validity of POA and the sale transactions.
Remarks: Perandalammal is the vendor and the vendor sold the property on the basis of oral agreement and on the basis of patta obtained in her favour. Suit is filed without impleading her sons and IOC.
(xv)Allegation: One Muthukrishnan claims to be the owner of the property in S.No.1383.
Remarks: Muthukrishnan sold the property to one Lalitha on 30.7.1984 and Lalitha inturn sold the property to the vendor's of IOC on 6.5.1996.
(xvi)Allegation: The sale deed in favour of one of the vendors was omitted to be referred to in the sale deed.
Remarks: All the title documents were handed over to IOC and the legal department is responsible for any omission to mention in the sale deed.
(xvii)Allegation: The name of one of the sons of the vendor Chengalvaraya Reddy was not referred to in the document, which leads to suspicion.
No remarks.
(xviii) to (xx) Allegation: The suits are filed, questioning the validity of POA.
Remarks: The petitioner's amount is with IOC, as such, in the event of any finding against the validity of POA in the civil suits, the same can be adjusted.
15.Thus, the plain reading of the allegations raised relating to the sale deeds in respect of survey numbers and the remarks to the same, would only, if it is viewed, in the light of the terms and conditions of the work order dated 14.9.1998 and also in the light of subsequent conduct of the parties, show that no prima facie case is made out for any offence against the petitioner herein. The work order contains as many as 16 conditions and the relevant conditions to be appreciated herein are that (i)the accused shall produce POA and other documents in original, along with other details required by the legal department as given in Annexure I immediately, without any further delay for verification and the title of the property has to be cleared by the legal department whose opinion shall be final and binding on both the parties; (ii)vacant possession of the property should be handed over to IOC on or before the date of registration of the sale deed; (iii)the accused shall produce 7/12 extract and search report for last 30 years from an Advocate; (iv)Payment towards land shall be made after complying with all the above requirements on the date of registration; and (v)the draft of the sale agreement/sale deed shall be prepared by IOC Advocate/law department.
16.Further, IOC has by letter dated 23.8.1999 requested the petitioner to complete few more formalities. As per the letter dated 23.8.1999 issued by IOC to M/s.Shri Ram Enterprises, all payments towards the sale proceeds of 109.6 acres shall be made through Shri Ram Enterprises A/c.No.1300102940 of Global Trust Bank, Chennai Branch, Chennai-4 and the formalities made in the letter should be completed in all respects on or before 31.8.1999 to enable IOC to take possession of the land before signing the agreement. The petitioner also complied with other formalities as mentioned in the letter dated 23.8.1999. It is nobody's case that the sale deeds are registered in favour of IOC without M/s.Shri Ram Enterprises having the petitioner and another as partners satisfying the work order and without complying with the formalities stated in the letter dated 23.8.1999. As referred to above, the title of the vendors is to be cleared and okeyed by the legal department and only thereafter, the sale deeds are prepared by the legal department or by the Advocate of IOC. If that is so, in the event of any omission in the scrutiny of title, the legal department of IOC is alone to be held responsible. When it is not the case of the complainant/IOC that the they are forced to purchase the property without getting any approval from the legal department, the question of finding fault with the petitioner for the omission, if any as mentioned above does not arise herein.
17.Thus, all the omissions and lapses as mentioned above do not constitute any offence, that too for any act of cheating and forgery or breach of trust against the petitioner herein. As rightly argued by the learned counsel for the petitioner, no offence for the act of criminal breach of trust as defined under Section 405 IPC is attracted and there is absolutely no entrustment of any property or domain over the property on the accused so as to lead to further act constituting the offence for the act of criminal breach of trust under section 405 punishable under section 406 IPC.
18.As far as the act of cheating under section 420 IPC is concerned, as there was no fraud or dishonest intention allegedly made out against the petitioner and as the final registration of the sale deeds is after satisfactory completion of all the formalities and as the registration of the sale transactions is preceded by different steps and stages, it cannot be said that the petitioner had the intention of cheating from the very inception. It is well settled that the ingredients of an offence of cheating are: (i)there should be fraudulent or dishonest inducement of a person by deceiving him (ii)(a)the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b)the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii)in cases covered by (ii)(b), the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property. In this case, by reason of intervention of the legal department between the opponent and the agreement holder, the question of inducement that too with fraudulent or dishonest intention, does not arise herein and the ingredients as referred to above, are missing in this present case. The Hon'ble Supreme Court in the judgment reported in AIR 1974 SC 301 (Hari Prasad Chamaria v. Bishun Kumar Surekha and others) cited on the side of the petitioner, is pleased to hold that even assuming prima facie that all the allegations in the complaint to be true they merely amount to a breach of contract and could not give rise to criminal prosecution. There is nothing in the complaint to show that the petitioner had dishonest or fraudulent intention at the time, when the complainant parted with the money nor did the complaint indicate that the petitioner had induced the complainant to pay them the amount parted with.
19.Thus, the allegations raised in the complaint and the details furnished in the subsequent letter, which is registered as the present FIR, even assuming to be accepted, the same do not make out any offence under sections 406 and 420 IPC against the petitioner and other accused, as such, the impugned FIR on the ground of maintainability as well as on facts, is liable to be quashed in its entirety.
20.In the result, this Criminal Original Petition is allowed and the FIR in Cr.No.391/2010 on the file of the first respondent police stands quashed in entirety. Consequently, connected Miscellaneous Petition is closed.
Index:Yes/No 16.10.2014
Internet:Yes/No
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To
1.The Inspector of Police,
E3, Minjur Police Station,
Minjur, Thiruvallur District.
2.The Public Prosecutor, High Court, Madras-104.
K.B.K.VASUKI, J
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Crl.OP.No.28716 of 2010
16.10.2014