Madras High Court
N.Prabhu vs The State Rep. By on 27 February, 2020
Author: T.Krishnavalli
Bench: T.Krishnavalli
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 27.02.2020
CORAM
THE HONOURABLE MRS. JUSTICE T.KRISHNAVALLI
Crl.RC(MD)No.807 of 2019
N.Prabhu : Petitioner/Petitioner/
De-facto complainant
Vs.
1.The State rep. by
The Inspector of Police,
District Crime Branch,
Dindigul District,
(In Crime No.81 of 2014). : 1st respondent/Complainant
2.M.Balamaniyamal
3.M.Murugapandi
4.Nagendiran
5.M.Dhandapani. : R2 to R5/A1 to A4
Prayer: Criminal Revision filed under section 397 r/w 401
of the Criminal Procedure Code against the order made in Cr.MP
No.35 of 2017, dated 02.04.2018 on the file of the Judicial
Magistrate No.II, Dindigul.
For Petitioner : Mr.K.Prabhu
For 1st Respondent : Mr.V.Neelakandan
Additional Public Prosecutor
For R2 to R4 : Mr.D.Selvanayagam
http://www.judis.nic.in
2
JUDGMENT
This criminal revision is directed against the order passed in Cr.MP No.35 of 2017, dated 02.04.2018 by the Judicial Magistrate No.II, Dindigul.
2.The case of the petitioner is that the 2nd respondent M.Balamaniammal is the wife of Late Muthusamy Pillai and she is the grand-mother of the petitioner and she is having 4 children namely M.Murugapandi, M.Nagendran and M.Dhandapani, the respondents 2 to 5 herein and Nageswaran, the father of the petitioner and after the demise of the petitioner's father, the respondents 2 to 5 obtained a forged legal heir certificate and sold the properties to the petitioner's grand father. The petitioner filed a writ petition in W.P(MD)No.1447 of 2013 seeking direction to the Tahsildar, Dindigul to issue a legal heir certificate to the petitioner and that was allowed on 29.01.2013 and the petitioner obtained legal heir certificate of his father and subsequently, the father's name of the petitioner also included as one of the legal heirs of A.Muthusamy Pillai and on 01.11.2013, the Taluk Surveyor along with his Assistant, surveyed the petitioner grand-father's house without informing the petitioner and when the same was http://www.judis.nic.in 3 questioned, the proposed accused attacked the petitioner and used filthy language and also threatened with dire consequences. Hence, the petitioner filed a complaint before the 1st respondent police, but no action was taken and as such, the petitioner filed Crl.OP(MD)No. 10820 of 2014 and the same was disposed on 17.06.2014 with a direction that if any cognizance offence is made out, the first respondent police is directed to register the case. Thereafter, the first respondent registered a case in Crime No.81 of 2014 for the offence under sections 406, 420, 465, 468, 471, 506(ii) IPC. Subsequently, since no action was taken, the petitioner filed Crl.OP(MD)No.27120 of 2015 to transfer the investigation from the 1st respondent police to CBCID Wing and that on 23.02.2015, FIR has been closed as “Mistake of Fact.” Hence, the petitioner filed a protect petition in Cr.MP No.35 of 2017 before the Judicial Magistrate No.II, Dindigul, which was dismissed on 02.04.2018. Aggrieved over the same, the petitioner is before this court.
3.Heard both sides and perused the materials available on record.
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4.The learned counsel appearing for the petitioner/de- facto complainant argued that there is a prima facie case made out as against all the accused persons and the accused persons prepared bogus Will and used as genuine one and thereby cheated the petitioner and the Judicial Magistrate No.II, Dindigul, without analysing the complaint of the petitioner and the the final report of the police has erroneously dismissed the petition filed by the petitioner and there is sufficient ground to proceed with the case as against the accused persons and prays that the revision revision has to be allowed, by setting aside the impugned order passed by the trial court.
5.On the other hand, the learned counsel appearing for the respondents 2 to 5 submitted that the trial court after considering the entire materials on record, passed the impugned order and prays for dismissal of the criminal revision.
6.On perusal of the closure report filed by the first respondent wherein it is stated that the dispute is civil in nature and hence, the case was closed as “Action Dropped.” http://www.judis.nic.in 5
7.It is admitted on both sides that the grand father of the petitioner Muthusamy Pillai is entitled to share in the disputed properties. The petitioner states that the respondents 2 to 5 without adding his father Nageswaran as one of the legal heirs got legal heirs certificate fraudulently and when it came to their knowledge by way of filing writ, the name of the father was added as one of the legal heirs, the deceased Muthusamy Pillai. On the other hand, on the side of the respondents 2 to 5, it is submitted that during the lief time of Muthusamy Pllai, he executed a Will in their favour and after the death of Muthusamy Pillai, they are entitled to the properties of Muthusamy Pillai.
8.Perusal of the impugned order reveals that the learned Judicial Magistrate No.II, Dindigul, without properly perusing the relevant documents has erroneously come to the conclusion that there is no prima facie case made out as against the accused persons. Further perusal of the impugned order would go to show that the learned Judicial Magistrate No.II, Dindigul, while dismissing the petition filed by the petitioner, has not considered the statement of Oath of the complainant and the witnesses and the result of enquiry under section 202 of Cr.P.C. http://www.judis.nic.in 6
9.In view of the above facts, this court is of the considered view that the matter has to be remitted back to the trial court for passing orders afresh purely on merits and in accordance with law.
10.In the result, the criminal revision is allowed. The impugned order, dated 02.04.2018 passed in Cr.MP No.35 of 2017 by the Judicial Magistrate No.II, Dindigul is set aside. The case is remitted back to the trial court namely learned Judicial Magistrate No.II, Dindigul and the trial court is directed to dispose of the Cr.MP No.35 of 2017 afresh purely on merits and in accordance with law, after perusing the entire evidence, both oral and documentary, within a period of three months from the date of receipt of a copy of this order.
27.02.2020 Index:Yes/No Internet:Yes/No er http://www.judis.nic.in 7 To,
1.The Judicial Magistrate No.II, Dindigul.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 8 T.KRISHNAVALLI, J er Crl.RC(MD)No.807 of 2019 27.02.2020 http://www.judis.nic.in 9 Crl.RC(MD)No.434 of 2008 T.KRISHNAVALLI,J ADVANCE ORDER In the result, the Criminal Appeal is partly allowed. The punishment imposed on the appellant for the offence under Section 365 IPC is reduced into 6 months RI. In other aspects, the findings of the trial court is confirmed. The period of sentence, if any already undergone by the appellant shall be given set off under Section 428 of Cr.P.C. The appellant, after adjusting the period of imprisonment already undergone shall undergo imprisonment for the remaining period. The appellant may be set at liberty forthwith, unless his detention is required in connection with any other case.
18.06.2019 Index:Yes/No Internet:Yes/No er http://www.judis.nic.in