Madras High Court
K.Ammaiappan vs P.Suresh on 23 August, 2023
Crl.O.P.(MD)No.1513 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23.08.2023
CORAM
THE HON'BLE MR.JUSTICE P.DHANABAL
Crl.O.P.(MD)No.1513 of 2019
and
Crl.M.P.(MD)Nos.763, 764 & 4486 of 2019
1.K.Ammaiappan
2.A.Lakshmi
3.A.Sarasu ... Petitioners
Vs.
P.Suresh ... Respondent
PRAYER : Criminal Original Petition filed under Section 482 of the
Code of Criminal Procedure, to call for the records pertaining to the
complaint in C.C.No.256 of 2017 on the file of the Judicial Magistrate
No.I, Karur and to quash the same as illegal in respect of the petitioners.
For Petitioners : Mr.C.Mayilvahana Rajendran
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Crl.O.P.(MD)No.1513 of 2019
For Respondent : Mr.M.V.Shankar
ORDER
This Criminal Original Petition has been filed to quash the complaint in C.C.No.256 of 2017 on the file of the Judicial Magistrate No.I, Karur in respect of the petitioners.
2.According to the petitioners, based on the complaint given by the respondent herein, the learned Judicial Magistrate No.I, Karur has taken cognizance in C.C.No.256 of 2017 for the offence under Sections 120(B), 191, 192, 193, 196, 200, 206, 207, 209, 406, 420, 463, 464, 465, 467, 468, 471 and 475 IPC. The respondent is none other than husband of the third petitioner and son-in-law of the first and second petitioners. There is a matrimonial dispute and cases are pending between the third petitioner and the respondent. Due to that motive, the present complaint was lodged as against the petitioners. In the complaint, he alleged that the property situated in Survey No.203, LNS Village, Karur Taluk belonged to one Ganapathi Ammal and she created a religious and 2/12 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.1513 of 2019 charitable endowment. The father of the first petitioner was cultivating tenant of the above said land and after his demise, the first petitioner was the cultivating tenant. The first petitioner purchased the above said property from the Trustees on 15.11.1994 vide document No.4682/1994. The first accused executed a sale deed in favour of the second petitioner on 25.08.1995. Subsequently, the second petitioner executed a settlement deed in favour of the third petitioner and the same have been duly registered with Sub Registrar Office. Further, the property situated in S.No.203 belongs to the Temple and the petitioners have created forged document and second petitioner filed suits in O.S.Nos.501 of 2012, 513 of 2012, 535 of 2012 and 290 of 2014 before the District Munsif Court, Karur and she made an averment that no litigation is pending before any other Court in respect of above said property. The above said facts are incorrect and thereby, they committed perjury before the Court. Hence, the respondent filed private complaint before the learned Judicial Magistrate No.I, Karur and the same was taken on file without application of mind. In fact, the first petitioner purchased the property for valuable consideration through document dated 15.11.1994 and thereafter, executed sale deed in favour of the second petitioner, who 3/12 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.1513 of 2019 in turn, executed settlement deed in favour of the third petitioner. The land was comprised 12 plots, out of which, 8 plots were sold out to various persons and they have also constructed house and enjoying the possession. The sale deed executed by the Trustees dated 15.11.1994 was not questioned by anyone of the Trustee and worshipper. The respondent is not a worshipper and devotee of idol of Lord Sri Arulmigu Solarajaswamy Periakkandi Amman, Veerapathiraswamy, Mandakaruppasamy and Periyannaswamy of Solmpatti, Thumbalam Village, Musiri Taluk. The respondent belongs to Gounder community people and the Temple belongs to Muthuraja community people. The learned Magistrate failed to note that to initiate proceedings under Sections 193, 196, 200, 206, 207, 209 IPC, procedures under Section 195 Cr.P.C. have to be followed. In this case, the same has not been followed while taking cognizance by the learned Magistrate. There is a bar under Section 195 Cr.P.C., to take cognizance and the same has not been considered by the trial Court. Hence, the impugned proceedings in C.C.No.256 of 2017 is liable to be quashed.
3.No counter was filed by the respondent.
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4.The learned counsel appearing for the petitioners would contend that the respondent has filed private complaint as against the petitioners and the same was taken cognizance by the learned Magistrate in C.C. No.256 of 2017 for the offence under Sections 120(B), 191, 192, 193, 196, 200, 206, 207, 209, 406, 420, 463, 464, 465, 467, 468, 471 and 475 IPC. The trial Court failed to follow the procedures mandated under Section 195 Cr.P.C., for taking cognizance of the offence under Sections 193, 196, 200, 206, 207, 209 IPC. Therefore, on that sole ground itself, the complaint is liable to be quashed. Apart from that, the petitioners purchased the property for valuable consideration and they are in possession from the year 1994 and thereafter, they sold the property to some other persons and they are also in possession and enjoyment of the same. The respondent is none other than the son-in-law of the first and second petitioners and husband of the third petitioner. Due to family dispute, the present false complaint came to be preferred and the same is liable to be quashed.
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5.The learned counsel appearing for the respondent would contend that these petitioners already admitted that the first petitioner is cultivating tenant of the property and the property belonged to the Temple and thereafter, he purchased the property in the year 1994, knowing very well that the Trustees have no right over the property. Thereafter, the first petitioner executed sale deed in favour of the second petitioner, who is none other than the wife of the first petitioner, and she in turn, executed settlement deed in favour of the third petitioner, who is the daughter of the first and second petitioners. They have created forged documents and the same were produced before the civil Court and thereby, they have committed offence under Sections 120(B), 191, 192, 193, 196, 200, 206, 207, 209, 406, 420, 463, 464, 465, 467, 468, 471 and 475 IPC. Therefore, the respondent filed private complaint before the learned Magistrate and the learned Magistrate also, after perusing the records had taken cognizance of the same. There is no bar for the other offences and this Court can quash the part of the offences and for the remaining offences, trial can be conducted. He would further contend that as per complaint, there are prima facie materials available as against the petitioners and at this stage, this Court need not quash entire 6/12 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.1513 of 2019 proceedings and the petitioners have to face the trial. Therefore, this petition is liable to be dismissed.
6.Heard both sides and perused the materials available in the records.
7.On perusal of records shows that the respondent has filed private complaint before the learned Judicial Magistrate No.I, Karur and the same was taken cognizance in C.C.No.256 of 2017 for the offence under Sections 120(B), 191, 192, 193, 196, 200, 206, 207, 209, 406, 420, 463, 464, 465, 467, 468, 471 and 475 IPC. As rightly contended by the learned counsel appearing for the petitioners that the learned Magistrate has not taken into account of the mandatory procedures to be followed while taking cognizance under Sections 193, 196, 200, 206, 207, 209 IPC. As per Section 195 Cr.P.C., there is a specific bar for taking cognizance for the offence under Sections 193, 196, 200, 206, 207, 209 IPC. At this juncture, it is relevant to extract Section 195 Cr.P.C:-
195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence – 7/12 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.1513 of 2019 (1) No Court shall take cognizance—
(a) (i) of any offence punishable under sections 172 to 188 (both inclusive)of the Indian Penal Code (45 of 1860), or
(ii) of any abetment of, attempt to commit, such offence, or
(iii) 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;
(b) (i) of any offence punishable under any of the following section of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or
(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate 8/12 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.1513 of 2019 (2) Where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint:
Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded (3) In clause (b) of sub-section (1), the term "Court"
means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, provincial or State Act if declared by that Act to be a Court for the purposes of this section (4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from appealable decrees or sentences of such former Court, or in the case of a civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate:
Provided that—
(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;
(b) where appeals lie to a civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the 9/12 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.1513 of 2019 civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.
As per Section 195 Cr.P.C., in order to take cognizance for the offence under Sections 193 to 196, 199, 200, 205 to 211 and 228 IPC, the complaint has to be given in writing by the Court or some other Court. Which is subordinate. But in this case, procedures under Sections 195 and 340 Cr.P.C., were not followed to take cognizance for the offence under Sections 193, 196, 200, 206, 207, 209.
8.Therefore, though the learned Magistrate has passed detailed order, failed to follow the mandatory procedures while taking cognizance for the offence under Section 193, 196, 200, 206, 207, 209 471 and 475 IPC. Therefore, the cognizance taken by the Magistrate without following mandatory procedures under Section 195 Cr.P.C., vitiated entire proceedings. Therefore, the cognizance taken by the learned Magistrate is not sustainable and the same is liable to be quashed.
9.In the result, this criminal original petition is allowed and the complaint in C.C.No.256 of 2017 pending of the file of the learned Judicial Magistrate No.I, Karur is hereby quashed. The respondent is at 10/12 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.1513 of 2019 liberty to file fresh complaint before the concerned jurisdictional Magistrate by following all the legal formalities. Consequently, connected miscellaneous petitions are closed.
23.08.2023
Index : Yes / No
Internet : Yes / No
gns
To
The Judicial Magistrate No.I,
Karur.
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https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.1513 of 2019
P. DHANABAL,J.
gns
Crl.O.P.(MD)No.1513 of 2019
23.08.2023
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