Madras High Court
G.Pandurangan vs Devadoss Reddy on 23 April, 2012
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 23.04.2012 Coram THE HON'BLE MR.JUSTICE C.S.KARNAN Crl.R.C.No.224 of 2006 G.Pandurangan .. Petitioner Vs. 1.Devadoss Reddy 2.Ramachandriya 3.The Manager, Southern Regional, Indian Oil Corporation Limited Company, No.139, Nungambakkam High Road, Chennai - 34. .. Respondents Prayer :- Criminal Revision is filed under Section 397 r/w 401 of Cr.P.C., to set-aside the impugned order of dismissal in M.P.No.1399 of 2004 dated 29.12.2005, on the file of the XVI Metropolitan Magistrate, George Town, Chennai and direct the learned Magistrate to take cognizance of the complaint. For Petitioner : Mr.N.Pappiah For Respondent : Mr.V.V.Ravichandran for R1 No appearance - R2 Mr.Abdul Saleem and M/s.Anand Abdul and Vinodh for R3 - - - ORDER
The petitioner / defacto complainant has preferred the present revision against the dismissal of complaint by order made in M.P.No.1399 of 2004, on the file of the XVI Metropolitan Magistrate, George Town, Chennai.
2. The short facts of the case are as follows:-
The complainant has preferred a private complaint under Section 200 of Cr.P.C. for offence under Sections 420, 406 and 476 r/w 34 of IPC against the accused persons alleging that the first accused obtained a registered power of attorney from him and his wife. One Tmt.Meera in respect of the landed property, they jointly possess in Survey No.1382/2, situated at Vallur Village, Minjur Town Panchayat, Ponneri Taluk, Tiruvelllore District agreeing to pay Rs.2,600/- per cent totalling Rs.4,83,600/- for 1 acre 86 cents and towards the said amount issued two cheques for Rs.2,46,000/- and Rs.2,37,000/- which got dishonoured on its presentation for collection and therefore, the complainant and his wife cancelled the registered power of attorney on 27.11.2000 by a cancellation deed and intimated the same to the first accused under legal notice. It was submitted that the first accused, having come to know about the cancellation of the power of attorney in his favour, came forward for negotiation and issued another cheque for Rs.2,00,000/- under cheque No.929890, dated 30.05.2001, drawn on State Bank of India, which also got dishonoured on its presentation. A complaint was filed against the first accused for an offence under Section 138 of Negotiable Instruments Act, which is pending on the file of the Judicial Magistrate, Thirukazhukundram as C.C.No.213 of 2002. In the meanwhile, on 14.02.2001, the first accused in collusion with the second accused, by camouflaging the cancellation of power of attorney deed, sold away the property in dispute to the third accused and the third accused, without verifying the title property had purchased the property by defying well laid principles of law "caveat emptor' and thus all the accused had jointly cheated the complainant by forging documents and thus committed offence under Sections 420, 406 and 476 r/w 34 of IPC and prayed for forwarding the complaint to CBCID Police, Chennai to investigate the matter and file report under Section 156 of Cr.P.C. and to award compensation of Rs.9,11,600/- to the complainant as per Section 357 Cr.P.C.
3. The above complaint was filed on 29.03.2004 and posted on 05.04.2004 as check and call on 05.04.2004. The Court took up the case and on on the premise that the case is civil in nature, based on the observations found in the orders passed in Crl.O.P.No.5858 of 2004 by the High Court of Judicature, Madras, the Court, at the threshold, without recording sworn statement of the complainant, dismissed the complaint. The said order was upheld by the Hon'ble Additional Sessions Judge, Chennai in Criminal Revision Petition No.106 of 2004. But, as against the said order, the complainant preferred appeal in Crl.O.P.No.3392 of 2994, on the file of Hon'ble High Court of Judicature, Madras, in which, the High Court, Madras has directed this Court to record sworn statement of the complainant and to decide the case on merits, after going through the records. Accordingly, the sworn statement of the complainant was recorded and at the request of the complainant, this Court ordered an enquiry under Section 202 of Cr.P.C. to the Inspector, CBCID Wing, Chennai to investigate and report within 6 weeks. The Inspector of Police, CBCID, Metro Wing, Chennai-2 filed a negative report on 25.07.2003. Thereupon, notice was issued to the complainant and complainant was heard on 09.12.2005.
4. The case of the complainant is that the first accused, despite the cancellation of the legal power of attorney in his favour, executed a sale deed in collusion with the second accused, to the third accused. But, the Police had filed a report along with copies of documents. Perusal of sale deed executed by the first accused in favour of third accused shows that it was executed on 31.12.1999, on which date the power of attorney executed in favour of first accused still subsists since it was cancelled by the complainant only on 27.11.2000. Hence, the Metropolitan Magistrate observed that the action of the first accused in executing the sale deed in favour of the third accused on 31.12.1999 is valid and binding on the complainant, as it was executed in pursuance of the power of attorney executed by the complainant. Therefore, the complainant cannot question the sale in favour of the third accused by the first accused. Further, the learned Metropolitan Magistrate observed that the Police report en-lights this Court about the receipt dated 04.11.2000 issued by the complainant in favour of the first accused, wherein, the entire monetary transaction between the parties have been extracted and the complainant admitted that he has no dues in respect of the said transaction. The learned Metropolitan Magistrate observed that the complainant had received the cheque no.98989, dated 30.05.2001 for Rs.2,00,000/- and other amount in cash and has given receipt to that respect to the first accused and then turned around and cancelled the registered power of attorney in favour of first accused only on 27.11.2000, by which time the sale deed in favour of third accused was executed on 03.12.1999 during the subsistence of power of attorney deed. The learned Magistrate observed that the sale deed was registered on 14.02.2001 and further opined that the date of registration cannot be termed as date of deed. The learned Magistrate, on observing that only the date of execution of deed alone is to be taken as date of deed held that the sale deed executed on 31.12.1999 is a valid sale deed executed by the power of attorney holder of the complainant in favour of third accused which will bind the complainant also. Hence, the learned Magistrate dismissed the contentions of the complainant that the accused forged the documents and cheated the complainant and committed criminal breach of trust. The learned Magistrate further observed that even after the cancellation of the power of attorney deed, the complainant has utilized the cheque issued by the first accused towards the said power of attorney deed and filed private complaint against the accused on its dishonour which was admittedly pending before the learned Judicial Magistrate, Thirukazhukundram. Hence, the learned Magistrate inferred that the complainant was not serious about the cancellation of power of attorney deed in favour of first accused.
5. Hence, the learned Magistrate, on observing that the sale deed was executed on 31.12.1999 itself during the subsistence of power of attorney in favour of first accused and that the deed was not executed on 14.02.2001 as per contentions of the complainant, and on perusal of documentary evidence, held that no prima-facie case has been made against the accused for an offence under Sections 406, 420 and 476 r/w 34 of IPC and hence, was not inclined to take the complaint on file.
6. Aggrieved by the dismissal of his complaint, the petitioner / defacto complainant has preferred the present revision.
7. The learned counsel for the revision petitioner has contended in his revision that the trial Court failed to see that the encumbrance certificate during the period did not show any sale deed registered on 31.12.1999 or after and before 27.11.2000. Further, the cancellation of power has been brought to the knowledge of the accused / respondents 1 and 2 from whom the statements were obtained by the investigation agency. It was contended that mere presentation of the sale deed and the registration of the sale deed is different and the document is valid only after due registration. It was contended that the validity of the document came into force in the year 2001 and the respondents / accused, knowing about this fact had committed the offence of registration by misrepresentation of the fact and committed fraud before the lawful authority. It was also contended that the learned Magistrate failed to note that the principal / petitioner has not received any amount due to him towards sale of his own property and his purpose of power of attorney is defeated by the Realtor / respondent-accused by malafide commission and omission. It was contended that after knowing well about the cancellation of power of attorney, the respondent further cheated the petitioner by issuing the cheques, which to the knowledge of the respondents were to be dishonoured and warrants for prosecution as the facts arise on different cause of action and not on the same transaction which also was misconceived by the learned Magistrate. Hence, it was prayed to set-aside the orders passed by the trial Court and to direct the learned Magistrate to take cognizance of complaint.
8. Mr.V.V.Ravichandran, the learned counsel appearing for the first respondent submits that the accused had issued cheque to and in favour of the complainant drawn on State Bank of India. The same was dishonoured on presentation. Hence, the complainant had levelled a case in C.C.No.213 of 2002, on the file of Judicial Magistrate, Thirukazhukundram for an offence under Section 138 of Negotiable Instruments Act. As such, the complainant's petition filed before the learned Magistrate is not maintainable.
9. The highly competent counsel Mr.M.Vijayameharal appearing for the third respondent submits that the said transaction was made on the basis of registered power of attorney executed by the complainant in favour of the first accused. Therefore, on the strength of power of attorney, the accused had sold the property in favour of the third respondent herein. Therefore, the said transaction has been done on the basis of contract which is civil in nature. Therefore, the learned Magistrate had rightly rejected the said complaint. Further, if any dispute arises regarding the said transaction, it has to be decided only by the civil Court. At the time of execution of the sale deed to and in favour of the third respondent herein, the general power was in force. As such, the sale deed is sustainable under law.
10. On considering the factual position of the case and arguments advanced by the learned counsels on all sides and on perusing the trial Court's order, this Court does not find any discrepancy in the conclusions arrived at for dismissing the complaint. This Court is of the further view that in the same transaction, the accused had issued a cheque in favour of the complainant and the same was dishonoured on presentation. Hence, the complainant had filed a case in C.C.No.213 of 2002, on the file of Judicial Magistrate, Thirukazhukundram. Therefore, on the basis of same cause of action, one more case cannot be filed against the same accused. Further, it is an admitted fact that the complainant had executed a power of attorney in favour of first accused. On the strength of power of attorney, the first accused had acted upon and executed a sale deed. If the accused had committed any breach of conditions, as per the terms of general power, his remedy has to be sought out before the civil Court.
11. In the result, the above revision is dismissed. Consequently, the order passed in M.P.No.1399 of 2004, on the file of the XVI Metropolitan Magistrate, George Town, Chennai, dated 29.12.2005, is confirmed.
23.04.2012
r n s
Index : Yes / No.
Internet : Yes / No.
To
The XVI Metropolitan Magistrate,
George Town,
Chennai.
C.S.KARNAN, J
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Crl.R.C.No.224 of 2006
23.04.2012