Madras High Court
V.G.P.Rajadoss vs The State Represented By on 13 October, 2014
Author: K.B.K.Vasuki
Bench: K.B.K.Vasuki
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.10.2014 CORAM: THE HONOURABLE Ms.JUSTICE K.B.K.VASUKI Crl.O.P.No.29903 of 2011 and M.P.Nos.1 & 2 of 2011 1.V.G.P.Rajadoss 2.V.G.Santhosam .. Petitioners Vs. 1.The State represented by the Sub Inspector of Police, XVII Team, Central Crime Branch, Egmore, Chennai -08. 2.Uma Balamohan 3.I.Jayaseeli 4.A.Edwin Christopher .. Respondents (R2 & R3 impleaded as per the order of this Court, dated 23.07.2012, made in M.P.No.1 of 2012) (R4 impleaded as per the order of this Court, dated 30.07.2012 made in M.P.No.2 of 2012) PRAYER: Criminal Original Petition filed under Section 482 Cr.P.C. praying to quash the final report filed by the respondent Police in Crime No.437 of 2010, dated 23.09.2010, pending in C.C.No.664 of 2011 before the learned Judicial Magistrate, Alandhur. For petitioner : Mr.AR.L.Sundaresan, Senior Counsel for Mr.M.Suresh Kumar For 1st respondent : Mr.C.Emalias Addl. Public Prosecutor For respondents : Mr.K.Ramani 2 & 3 For 4th respondent : Mr.Nithiyanandan ORDER
The Criminal Original Petition is filed for quashing the proceedings in C.C.No.664 of 2011 on the file of the learned Judicial Magistrate, Alandur, arising out of Crime No.473 of 2010 on the file of the first respondent Police. C.C.No.664 of 2011 is filed for the offences under Sections 120-B, 420, 467, 471 r/w 34 IPC.
2.The complaint is filed in respect of the property measuring 5.50 acres in Karapakkam Village, Tambaram Taluk, Kanchipuram District, belonging to one Mariadas since deceased. The complaint is given by son-in-law of Mariadas on behalf of his legal heirs on 23.09.2010. The complaint proceeds as if Mariadas purchased the said property from one Mr.Thiruvengada Naicker on 15.02.1981 and while he was alive, he executed registered Power of Attorney in favour of M/s.V.G.P. Housing Private Limited on 08.12.2004 and subsequently, Mariadas died on 27.04.2008 and after his death, his LRs become owners of the property and they are in joint possession and enjoyment of the same. While so, the Director of M/s.V.G.P. Housing Private Limited - A1, in whose favour Mariadas executed Power of Attorney on 08.12.2004, has entered into a sale agreement on 21.11.2008, with A2, who is the Director of M/s.V.G.P. Panneerdas & Co. Private Limited in respect of the same property with the intention to cheat the legal heirs of Mariadas and to grab the property which is more valuable for lesser price. The complaint further says that A1 and A2, who are the petitioners herein, along with A3, threatened the LRs of Mariadas not to interfere with the property in question. The case was on the basis of the allegations, as stated above, registered for the offences under Sections 420, 467, 471 r/w 34 IPC and the same is, after investigation, charge sheeted for the offences under Sections 120-B, 420, 467, 471 r/w 34 IPC.
3.The charge sheet was filed for the said offences alleging that A1 to A3 conspired together and executed the sale agreement on the strength of power of attorney deed, which lost its validity after the death of the principal, knowing fully well that they are not the owners of the property and they have no right to do so and in pursuance of the same, A1 to A3 created forged rental document to show that it is leased out to A3 and the documents are so created with an intention to make wrongful gain to them and to cause loss to the LRs of Mariadas.
4.The petitioners, who are arrayed as A1 & A2 in C.C.No.664 of 2011, are now before this Court for quashing the proceedings mainly on the ground that the investigation is biased, tainted and onesided and without appropriate probe into the material facts and without duly considering the declaration made by the petitioners before the competent Civil Court not to make any claim on the basis of the sale agreement, dated 21.11.2008 and the allegations are not supported by any legally permissible material.
5.The case of the petitioners is that the deceased Mariadas entered into sale agreement with the company, having A1 as its Director, for the sale of the property and received payments on various dates and the prospective purchaser - A1 agreed to settle the loan due to Indian Bank. The agreement holder had also communicated with the Indian Bank for due repayment of the amount and the part payments were also made on various dates between 1994 and 1996 by way of cash and by way of cheques. The deceased Mariadas, during his life time, having received part of the sale amount as agreed between the parties, executed General Power of Attorney in favour of A1, instead of executing a sale deed. Pending execution of sale deed, Mariadas died and A1 entered into a sale agreement with another company having A2 as its Director bona fidely. A1 has also towards discharge of the debt due to Indian Bank issued cheques for Rs.4.50 lakhs, out of which cheques for Rs.3.50 lakhs were encashed. However, the Indian Bank having subsequently received the entire amount due to Bank from the LRs, returned the amount of Rs.3.50 lakhs, along with the unpresented cheque. According to the petitioners, the execution of the sale agreement and lease deed are only on the strength of original sale agreement with the original owner and there is no dishonest or fraudulent intention and there is no fabrication of any document and the petitioners have acted only under the bona fide belief that the power of attorney is coupled with interest and not otherwise. It is their further contention that the allegation raised against the petitioners do not attract the ingredients for the offences charge sheeted against the petitioners.
6.This petition is seriously opposed on the side of the respondent Police as well as by the defacto complainant and two individual respondents, who are the LRs of the deceased Mariadas.
7.Heard the rival submissions made on both sides.
8.The gravamen of the charges levelled against the petitioners is that they entered into sale agreement on the strength of the power of attorney, which lost its validity after the death of the principal and it is done so with an intention to cheat the present owners of the property and to grab more valuable property for lesser price. Much before the complaint, there are more than one civil suit in respect of the very same property between the parties. O.S.No.281 of 2010 is filed on 01.04.2010 by A3 - Sithambaram, against the Power of Attorney holder and another, for permanent injunction restraining the defendants or any one claiming under them from interfering with his peaceful possession and enjoyment of the property. O.S.No.353 of 2010 is filed on 20.04.2010 by the legal heirs of Mariadas against M/s.V.G.P. Housing Private Limited, represented by A1, M/s.V.G.P. & Co. (P) Limited represented by A2, A3 Sithambaram and one Jayaselvi for similar relief of permanent injunction from interfering with their peaceful possession and enjoyment of the suit property.
9.The institution of the Civil suits is followed by exchange of notices between A1 & A2 on one hand and LRs of the Mariadas on the other hand between April and June 2010 and the same is followed by another suit in O.S.No.188 of 2010 on 25.08.2010 by M/s.V.G.P. Aqua Farm Limited, represented by its Director Mr.V.G.P.Rajadas / A1 herein, against LRs. of Mariadas, the Registrar, SRO, Neelangarai and the District Collector, Kancheepuram District, for specific performance of the sale agreement, dated 10.12.1993 in respect of the suit property. The sale agreement, dated 10.12.1993, which, according to the petitioners, executed by Mariadas, is specifically referred to in the notice issued by the petitioner. In the plaint filed in specific performance suit O.S.No.188 of 2010, it is stated that Mariadas, having agreed to sell the property for Rs.18 lakhs, entered into sale agreement in writing with M/s.V.G.P. Aqua Farm Limited and the agreement holder cum prospective purchaser has also agreed to clear the loan amount due to the Indian Bank and the time for execution of the sale deed was periodically extended by Mariadas, since deceased on receiving payments and in pursuance of the agreement, the agreement holder communicated with the Indian Bank and the Indian Bank also duly responded to them. The particulars of payments received by Mariadas is also mentioned in the plaint. It is also mentioned in the plaint about the execution of power of attorney and that the said power is coupled with interest. However, the complaint impugned herein, which is latter in point of time, did not mention anything about the sale agreement, dated 10.09.1993. What is admitted in the complaint is only the execution of Power of Attorney deed, dated 08.12.2004 and the execution of sale agreement, dated 21.11.2008.
10.As already stated, the charges levelled against the petitioners are for the offences under Sections 120-B, 420, 467, 471 r/w 34 IPC. While 120-B IPC is for conspiracy, Section 420 IPC is for an act of cheating. Section 465 is punishment for forgery and Section 471 is for using as genuine any forged document or electronic record.
11.What is an act of forgery and what is 'making a forged document' is defined under Sections 463 and 464 IPC. The combined reading of the above makes it clear that act of forgery is making a false document with fraudulent and dishonest intention and 'making a false document' is executing the document dishonestly or fraudulently with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
12.Our Hon'ble Apex Court has in the judgment reported in 2009 (8) SCC 751 (Mohammed Ibrahim and others Vs. State of Bihar and another), after analysing Section 464 IPC, in paragraph No.14 held as follows;
"14.An analysis of Section 464 of the Penal Code shows that it divides false documents into three categories:
1.The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
2.The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
3.The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a)unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.
In short, a person is said to have made a "false document", if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practising deception, or from a person not in control of his senses."
13.As rightly argued by the learned senior counsel for the petitioners, the execution of sale agreement, dated 21.11.2008, which is the cause of action for filing the complaint, do not fall under either of the three categories of false document as laid down by the Apex Court. It is noteworthy to mention at this juncture that neither in the complaint nor in the charge sheet or in Section 161 statement of the witnesses, there is any reference or any allegation regarding the forged nature of the original sale agreement, dated 10.12.1993. The only document which is referred to in the complaint, Section 161 statement of the witnesses and the charge sheet as forged or false document is the agreement dated 21.11.2008. It is no doubt true that the sale agreement, dated 21.11.2008, was executed on the strength of the Power of Attorney, after the death of the principal, who executed the Power of Attorney deed. Such category of document is not covered under three categories of "false documents", as above referred to. There is a categorical statement made in the plaint in specific performance suit O.S.No.188 of 2010 in paragraph No.11 that the sale agreement, dated 21.11.2008, is entered after the death of the principal viz., Mariadas, due to oversight and the same has no legal sanctity and it can be ignored and the plaintiff is not claiming any relief on the strength of the said agreement. The declaration so made shall disclose the bona fide and goodfaith in the conduct of the petitioners.
14.Even otherwise as rightly argued by the learned senior counsel for the petitioners by relying upon the Hon'ble Apex Court judgment that it is not executed with any dishonest or fraudulent intention to make it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed. The allegations raised in the complaint as well as in the charge sheet do only say that the same was executed by the person who has no right of ownership over the same. The Hon'ble Apex Court has in paragraph No.17 of the above judgment categorically observed that the execution of such document, purporting to convey some property of which he is not the owner, is not execution of false document as defined under Section 464 IPC and if what is executed is not a false document, there is no forgery and if there is no forgery, neither Sections 467 or Section 471 are attracted. That being the legal and factual position, none of the ingredients of the offences under Sections 465, 467, 471 r/w 34 IPC are attracted in the present case.
15. It is not the case of the complainant that the petitioners pretended to be either Mariadas or LRs of Mariadas while executing the sale agreement. Therefore, it cannot be said that the petitioners have by their act of executing sale agreement and the rental agreement in any manner deceived the complainant or LRs of the Mariadass so as to attract the ingredients of cheating as stated in Section 415 IPC. The Hon'ble Apex Court has in paragraph No.23 of the judgment by way of clarification observed that the person defrauded is the purchaser or the prospective purchaser in whose favour the document was executed by the person, who has no right to do so and it is for the purchaser or the prospective purchaser to complaint that the vendor committed the fraudulent act of cheating but no such complaint can be made by a third party, who is not a party to the document. Thus, as per observation of the Hon'ble Apex Court, A2 is the competent person to lodge a complaint stating that the sale agreement is executed in his favour on the strength of the power of attorney which has no legal sanctity and it is not for the LRS of Mariadas, claiming to be the owners of the property, to make such a complaint.
16.As far as the act of cheating is concerned, here again the Hon'ble Apex Court has in paragraph Nos.18 & 19 of the judgment above cited laid down the essential ingredients of cheating as follows;
"18.Let us now examine whether the ingredients of an offence of cheating are made out. The essential ingredients of the offence of "cheating" are as follows:
(i)deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission;
(ii)fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and
(iii)such act or ommission causing or is likely to cause damage or harm to that person in body, mind, reputation or property.
19.To constitute an offence under Section 420, there should not only be cheating but as a consequence of such cheating, the accused should have dishonestly induced the person deceived.
(i)to deliver any property to any person, or
(ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security.)"
17.Neither of A1 and A2 tried to deceive either Mariadas or the LRs of Mariadas either by making false or by misrepresentation or by any other action or omission nor it is their case that they offered them any fraudulent or dishonest, inducement to either deliver any property or to consent to the retention thereof or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived.
18.Thus, when the allegations raised and the materials available do not make out any offence for act of forgery by making false document or for using it as genuine for act of cheating, the act of conspiracy will automatically fail.
19.The suit in O.S.No.188 of 2010 is filed mainly on the strength of the original sale agreement, dated 10.12.1993 for specific performance of the sale agreement dated 10.12.1993 executed by Mariadas, the genuineness of which is not denied either in the complaint or statement made under Section 161 or in the charge sheet in C.C.No.664 of 2011. The bona fide and the lack of mala fide or dishonest or fraudulent intention in coming forward to execute one such agreement is evident from the conduct of the petitioners in communications with the Indian Bank for discharge of their loan amount on 10.12.1993 itself i.e., the date on which they entered into the sale agreement, dated 10.12.1993 with Mariadas and the payments made to Mariadas under due receipt numbering 32 enclosed at pages 15 to 46 of the additional typed set of papers. The letter given by the petitioners to the Manager of the Indian Bank is also duly replied by the Manager of the Indian Bank on 15.12.1993, thereby the Indian Bank has informed the agreement holder about the total liability to the tune of Rs.4.65 lakhs with interest due from 01.10.1993. The petitioners have also sent five cheques for the amount due to the Indian Bank and out of five cheques, the Indian Bank encashed four cheques to the tune of Rs.3.50 lakhs. However, the Indian Bank was, on receipt of full amount due to the bank from the LRs of Mariadas after the dispute arose between the parties, returned back the amount to the petitioners, along with the last unpresented cheque, for Rs.75,000/-. The conduct of the petitioners as above discussed would only render the allegations raised in the complaint to be devoid of merits, baseless or unfounded. Even otherwise, the issue relating to the petitioners' right to get the execution of sale deed from the LRs of Mariadas is more of civil in nature and remains to be considered in the civil suit filed by the parties and no criminal liability arise out of the same, as alleged herein.
20.As far as A3 is concerned, he was put into the occupation of the property on the strength of the lease agreement, dated 01.04.2007, which is executed during the life time of Mariadas and after the death of Mariadas, the tenant filed a suit in O.S.No.281 of 2010, which is the first in point of time and he obtained an order of injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the property in I.A.No.640 of 2010. If that is so, the genuineness of sale agreement, dated 10.12.1993, right of the agreement holder to get execution of the sale deed and the genuineness of the rental agreement between the parties and the factum and possession of A3 in the suit property are more of civil in nature and are the issues for determination in the Civil Suit pending between the parties. Pending the same, the fourth respondent who is the son-in-law of the deceased Mariadas has come forward with the present complaint, culminated into C.C.No.664 of 2011.
21.The allegations raised in the charge sheet, by applying the views of the Hon'ble Apex Court in the judgment above cited, do not make out any case against the accused for the offences charged against them. In that event, there is no justification for this Court to allow the criminal proceedings to go on and to subject the petitioners to an ordeal of trial and if the same is allowed to do so it would amount to abuse of process of law and would cause serious prejudice to the petitioners. Hence, in order to secure the interest of justice, the proceedings against the petitioners in Crime No.473 of 2010, which culminated into C.C.No.664 of 2011 before the learned Judicial Magistrate, Alandhur, is liable to be quashed and stand quashed.
22.In the result, this criminal original petition is allowed. Consequently, connected miscellaneous petitions are closed.
Index : yes / No 13.10.2014
Internet : yes / No
gcg
To
1.The Judicial Magistrate,
Alandur.
2.The Sub Inspector of Police,
XVII Team, Central Crime Branch,
Egmore, Chennai -08.
K.B.K.VASUKI, J.
gcg
Crl.O.P.No.29903 of 2011
13.10.2014