Madras High Court
P.Vijayakumar vs The State Represented By
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
Crl.O.P.No.12298 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On : 28.06.2022
Delivered On : .07.2022
CORAM
THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
Crl.O.P.No.12298 of 2021 and
Crl.M.P.Nos.6896 & 6897 of 2021
1.P.Vijayakumar
2.N.Ponnuswamy ... Petitioners/Accused Nos.7 & 8
Vs.
1.The state represented by
The Inspector of Police,
CCB-Team-18 (Land Grabbing Cases),
Vepery, Chennai - 600 007. .. Respondent-1/Complainant
2.Z.Khajamohideen ... Respondent-2/De-facto Complainant
Prayer: This Criminal Original Petition had been filed under Section 482 of
Criminal Procedure Code to call for the records in respect of Charge Sheet
in C.C.No.2784 of 2021 pending before the C.C.B Court (Special Court for
land grabbing), Egmore, Chennai and quash the same.
For Petitioners : Mr.Y.Arulmanickam
For Respondents : Mr.L.Baskaran (for R.1)
Government Advocate (Crl. Side)
No Appearance (for R.2)
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Crl.O.P.No.12298 of 2021
ORDER
This Criminal Original Petition had been filed to call for the records in respect of Charge Sheet in C.C.No.2784 of 2021 pending before the C.C.B Court (Special Court for land grabbing), Egmore, Chennai and quash the same.
2. The learned Counsel for the Petitioner Mr.Y.Arulmanickam submitted his arguments. As per his submission, the second Respondent/Sirajudeen @ Khajamohideen herein had purchased the property which is a house site by way of registered Sale Deed dated 13.06.1986 on the file of Sub Registrar Office, Adyar in Document No.1755 of 1986. The properties measuring an extent of 2.42 acres and an extent of 1950 Sq.ft, are situated at Sholinganallur Village, Saidapet Taluk, Chengalpattu District (now Sholinganallur Village is in Kanchipuram District) bearing in Patta No.200. As the second Respondent was employed outside the country, he had executed a Power of Attorney deed in favour of one Radhakrishnan for the above said property, which had been registered as Document No.637 of 2002 on the file of the Sub Registrar, Neelankarai. The said Radhakrishnan had preferred a complaint to the Thuraipakkan 2/14 https://www.mhc.tn.gov.in/judis Crl.O.P.No.12298 of 2021 Police Station stating that the documents of the original Sale Deed in favour of his Principal - Sirajudeen @ Khajamohideen was lost. For which, the Thuraipakkan Police had issued C.S.R receipt and also issued Non-traceable Certificate in favour of Radhakrishnan. He had also issued a public notice in the local news papers.
3. Subsequently, after obtaining the certified copy of the said deed, the said Radhakrishnan had executed a Sale Deed in favour of one Venkatesan vide Document No.1211 of 2003. The said Venkatesan, in turn, had executed a Sale Deed dated 08.12.2008 in favour of the first Petitioner/Vijayakumar vide Document No.4789 of 2008 on the file of the Sub Registrar, Neelankarai. The first Petitioner herein had executed a Power of Attorney deed dated 01.10.2009 in favour of his father vide Doc.No.796 of 2009 on the file of Sub Registrar, Neelankarai. The Revenue Records viz., Patta, Chitta, Field Measurement Book for the said property had been transferred in the name of the first Petitioner/Vijayakumar.
4. While so, the said Sirajudeen @ Khajamohideen had executed an agreement of sale dated 10.09.2009 in favour of one Audhimunusamy vide 3/14 https://www.mhc.tn.gov.in/judis Crl.O.P.No.12298 of 2021 Doc.No.2893 of 2009 on the file of the Sub Registrar, Neelankarai. The said Sirajudeen @ Khajamohideen is the second Respondent in this case. He had preferred a complaint to the Commissioner of Police based on the Power of Attorney deed executed by him in favour of Radhakrishnan. The said Radhakrishnan had executed Sale Deed in favour of one Venkatesan. He had preferred a statement stating that Vijayakumar on the strength of the alleged Sale Deed attempted to fix boundary stones in the house site belonging to the second Respondent/Sirajudeen @ Khajamohideen.
5. The learned Counsel for the Petitioner invited the attention of this Court to the suit filed by the first Petitioner/Vijayakumar, impleading the said Sirajudeen @ Khajamohideen in O.S.No.244 of 2011 on the file of the learned Additional District Munsif Court, Alandur, which is available in the typed set enclosed along with the Petition. The Suit for Declaration to declare the Sale Deed of Sirajudeen @ Khajamohideen in favour of Ranjaini Balajee as null and void and not binding on the Plaintiff. After due trial, a decree was granted in favour of the Petitioner herein. The said Sirajudeen @ Khajamohideen and Ranjaini Balajee, who had been impleaded as party to the suit in O.S.No.244 of 2011 remained ex-parte. Already at the time of 4/14 https://www.mhc.tn.gov.in/judis Crl.O.P.No.12298 of 2021 admission of the suit, interim injunction was granted and due enquiry was conducted wherein both sides had marked documents. In the order granting injunction, the learned Additional District Munsif had ordered as follows:
" On perusal of Ex.R1 the original Sale Deed in respect of the suit property the stamp papers has been purchased in the name of Sirajudeen. Whereas on perusal of R7 the original passport filed by the first respondent it has been mentioned as Khaja mohideen and not Sirajudeen and further the said passport bears No.A9 261995. Whereas on perusal of Ex.P16 the Sale Deed executed by the first respondent in favour of the second respondent on 03.01.2011 the passport No. has been mentioned as A 9201950 and the photograph affixed therein does not coincide with Ex.R7 and further on comparison of Ex.P16 with Ex.P19 the cancellation of agreement executed on the same day i.e. on 03.01.2009 the Passport number has been mentioned as A9 261995 and the photograph is as the same affixed in Ex.R7 passport. Further on perusal of Ex.R1 the original Sale Deed in Page No.2 the word 'alias' has been retyped after erasing and it has been stated as Sirajudeen @ Khajamohideen sons of late Zainullahbudeen and there is no explanation by the respondent with respect to the same. On perusal of Ex.P2 the certified copy of Ex.R1 it is evident that the stamp papers have been purchased in the name of Sirajudeen and though the first Respondent contended that he is the original owner in possession of the original Sale Deed in his favour the first Respondent has not chosen to file the original patta in his favour and the revenue records in his favour."
6. Thereby, the learned Additional District Munsif, Alandur, after full-fledged enquiry, granted interim injunction in the Interlocutory Application No.746 of 2011 restraining the Respondents/Defendants 1 & 2 from interfering with the peaceful possession and enjoyment of the property of Plaintiff/Vijaya Kumar. Subsequently, when the Suit was taken up for hearing, the Defendants 1 & 2 remained ex-parte. Therefore, decree was 5/14 https://www.mhc.tn.gov.in/judis Crl.O.P.No.12298 of 2021 passed on the strength of the evidence of the Plaintiff. When the Civil Court had granted decree in favour of the Petitioner, the second Respondent on the strength of the Sale Agreement in favour of Audhimunusamy and subsequently cancelling the Sale Agreement and executing a Sale Deed in favour of Ranjaini Balajee vide Doc.No.07 of 2011 on the file of the learned Sub Registrar, Neelankarai itself is found to be an attempt by the second Respondent/De-facto complainant of indulging in Land Grabbing act whereas, he had preferred a complaint as though the Petitioner had indulged in land grabbing. The Investigation Officer in this case had recorded statement of the witnesses and had laid the final report, as though, the Petitioner herein had attempted land grabbing. Therefore, the final report laid before the Court of the learned Judicial Magistrate, Alandhur as against the Petitioners for the offences under Sections 419, 420, 465, 467, 468, 471 r/w Section 120(B) of the IPC. The Petitioners herein had been arrayed as Accused No.7 and Accused No.8.
7. The said Sirajudeen @ Khajamohideen executed the Power of Attorney in favour of one Radhakrishnan and the said Power of Attorney Radhakrishnan had executed the Sale Deed in favour of Venkatesan. The 6/14 https://www.mhc.tn.gov.in/judis Crl.O.P.No.12298 of 2021 said Venkatesan had sold the property to Vijaya Kumar. Therefore, the Petitioners herein had filed a Suit. In the Suit, instead of contesting the Suit the second Respondent/De-facto complainant had let it as ex-parte. Therefore, a decree was passed. Before proceeding with the trial, the learned Additional District Munsif, Alandhur had passed orders granting interim injunction to the first Petitioner and against the second Respondent/De-facto complainant herein who was Defendant before the learned Additional District Munsif, Alandhur. During the enquiry in the interim injunction application, documents belonging to the first Petitioner and the second Respondent/De-facto complainant were marked and considered by the learned Additional District Munsif, Alandhur. Based on the enquiry and appreciation of the documents in support of the respective parties, the learned Additional District Munsif, Alandhur had granted interim injunction in favour of the first Petitioner herein. It is to be noted that the Suit was for Declaration that the Sale Deed executed by Sirajudeen @ Khajamohideen in favour of Ranjaini Balajee is null and void.
8. The learned Government Advocate (Crl. Side) vehemently objected to the line of arguments of the learned Counsel for the Petitioners stating 7/14 https://www.mhc.tn.gov.in/judis Crl.O.P.No.12298 of 2021 that there are materials available in the Charge Sheet and he invited the attention of this Court to the expert opinion obtained by the Investigation Officer in this case, from the Forensic Experts, the statement of the witnesses recorded under 164 Cr.P.C and 161 Cr.P.C and also the final report laid against the Petitioners and other Accused by the Investigation Officer which is enclosed in the typed set filed along with this Petition by the Petitioner.
9. The learned Government Advocate (Crl. Side) invited the attention of this Court to the Charge Sheet and submitted that what all are raised by the learned Counsel for the Petitioner is to be treated as defence available to the Accused which can be appreciated only while adducing evidence before the Trial Court. Therefore, the learned Government Advocate (Crl. Side) sought dismissal of this Petition.
10. Even though the second Respondent received notice in this Petition and his name was also printed in the cause-list, he did not appear till date through his Counsel before this Court. Therefore, it is to be treated as second Respondent/De-facto complainant is aware of the outcome of this 8/14 https://www.mhc.tn.gov.in/judis Crl.O.P.No.12298 of 2021 Petition. It is to be noted that he had not agitated his valuable defence in the Suit filed by the Petitioners herein as Plaintiff before the learned Additional District Munsif, Alandhur. There, he had agitated his right at the admission stage regarding grant of interim injunction, but he had not contested that Suit in the trial. Therefore, ex-parte decree was passed. Under those circumstances the competent Civil Court by appreciation of evidence granted the decree in favour of the first Petitioner herein. The attempt of the second Respondent in preferring a complaint before the learned Metropolitan Magistrate, CCB Court, (Special Court for Land Grabbing Cases) against the Petitioners herein cannot at all be accepted.
11. It is for the Civil Court to consider the question of title on the basis of evidence adduced before it. The second Respondent in this Petition was the first Defendant in the Suit. He had agitated his right while grant of interim injunction. Based on adducing of evidence by marking documents interim injunction was granted in favour of the first Petitioner herein. The second Respondent/Sirajudeen @ Khajamohideen did not file any appeal against the interim order of injunction. He had also not contested the Suit during trial. Under those circumstances, the arguments of the learned 9/14 https://www.mhc.tn.gov.in/judis Crl.O.P.No.12298 of 2021 Government Advocate (Crl. Side) that the Charge Sheet cannot be quashed is found to be against the guidelines issued by the Hon'ble Supreme Court of India in the case of State of Haryana and others -vs- Bhajan Lal and others reported in 1992 SCC (Cri) 426. Therefore, the arguments of the learned Government Advocate (Crl. Side) is rejected.
12. When the Suit came up for trial, the second Respondent/ Sirajudeen @ Khajamohideen and Ranjaini Balajee in favour of whom the Sirajudeen @ Khajamohideen had executed Sale Deed, did not appear before the learned Additional District Munsif, Alandhur by adducing evidence in support of their contention, they let it as ex-parte. That gives a presumption that Sirajudeen @ Khajamohideen was aware of the outcome of his case.
13.In the light of the order passed by the learned Additional District Munsif, Alandhur in I.A.No.746 of 2011 in O.S.No.244 of 2011, the Defendant-1, who is the second Respondent in this Petition, did not adduce evidence in support of his contention. That gives a presumption under Section 114 of the Indian Evidence Act that the second Respondent/De- 10/14 https://www.mhc.tn.gov.in/judis Crl.O.P.No.12298 of 2021 facto complainant before this Court who is impleaded as Defendant 1 and the person in whose favour he had executed the Sale Deed, viz., Ranjaini Balajee had also not contested the Suit. Therefore, the decree granted by the competent Civil Court is to be accepted. The question of Title and the rival claims for the same property was agitated before the Civil Court. The second Respondent herein had not agitated his valuable right before the competent Civil Court. In the light of the above, the filing of a complaint by the second Respondent under the guise of land grabbing and registration of a case by the first Respondent is nothing but an exercise to harass the Petitioners herein, which is an abuse of the process of law, as per the guidelines issued by the Hon'ble Supreme Court of India in the case of State of Haryana and others -vs- Bhajan Lal and others reported in 1992 SCC (Cri) 426 where the Hon'ble Supreme Court of India had issued guidelines to the High Courts that the extraordinary powers available under Section 482 of Cr.P.C shall be used sparingly and not leniently.
14. If there are materials available before the Court, from the materials made available by the Prosecution that the case is nothing but an 11/14 https://www.mhc.tn.gov.in/judis Crl.O.P.No.12298 of 2021 exercise to cause harassment to the Petitioners, which is an abuse of the process of law, then the High Court can interfere by exercising extraordinary powers under Section 482 Cr.P.C. The arguments of the learned Counsel for the Petitioners in the light of the above circumstances is found acceptable and reasonable. Therefore, this Petition is allowed.
In the result, this Criminal Original Petition is allowed. Accordingly, the final report of the Investigation Officer laid before the Court of the Special Metropolitan Magistrate, C.C.B Court (Special Court for Land Grabbing), Egmore, Chennai in C.C.No.2784 of 2021 is quashed as against the Petitioners/Accused Nos.7 and 8 and the learned Metropolitan Magistrate, C.C.B Court (Special Court for Land Grabbing), Egmore, Chennai, is directed to proceed with the trial as against the other Accused and dispose of the case within a period of three months from the date of receipt of a copy of this order or from the date of uploading of this order on the website of this Court. Consequently, connected miscellaneous Petitions are closed.
tri .07.2022
Index : Yes / No
Internet : Yes / No
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Crl.O.P.No.12298 of 2021
To
1.The Metropolitan Magistrate,
C.C.B Court (Special Court for Land Grabbing),
Egmore, Chennai.
2.The Inspector of Police,
CCB-Team-18 (Land Grabbing Cases),
Egmore, Chennai - 600 007.
3.The Public Prosecutor,
High Court, Madras.
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Crl.O.P.No.12298 of 2021
SATHI KUMAR SUKUMARA KURUP, J.
tri
Pre-Delivery Order made in
Crl.O.P.No.12298 of 2021 and
Crl.M.P.Nos.6896 & 6897 of 2021
.07.2022
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