Madras High Court
J.Stalin vs State Represented By on 2 September, 2022
Crl.O.P.(MD)No.293 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 25.07.2022
PRONOUNCED ON : 02.09.2022
CORAM
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
Crl.O.P.(MD)No.293 of 2019
and
Crl.M.P.(MD)No.132 of 2019
J.Stalin : Petitioner/Accused
Vs.
1.State represented by
The Sub-Inspector of Police,
Karuppayoorani Police Station,
Madurai.
Crime No.173/2018.
2.Thenammai Valliappan
3.The Managing Director,
Tamil Nadu Small Industries Development
Corporation Limited, (SIDCO)
Thiru.Vi.Ka.Industrial Estate,
Guindy, Chennai - 600 032. : Respondents
(R-3 suo motu impleaded as per order of this Court,
dated 22.02.2022 in Crl.OP(MD)No.293/2019)
PRAYER : Criminal Original Petition has been filed under Section 482 Cr.P.C,
to call for the records relating to the impugned FIR in Crime No.173 of 2018,
dated 26.10.2018 on the file of the first respondent and quash the same as illegal.
https://www.mhc.tn.gov.in/judis
1/20
Crl.O.P.(MD)No.293 of 2019
For Petitioners : Mr.B.Saravanan,
For Respondents : Mr.K.Sanjai Gandhi
Government Advocate(Crl.Side)
for R.1
: Mr.T.K.Gopalan, for R2.
: Mr.T.Sakthikumaran, for R3.
ORDER
This Criminal Original Petition has been filed, invoking Section 482 Cr.P.C., seeking orders to call for the records pertaining to the case in Crime No.173 of 2018, pending on the file of the first respondent Police and quash the same.
2. The petitioner is the accused in Crime No.173 of 2018 pending on the file of the Karuppayoorani Police Station, Madurai. On the basis of the complaint lodged by the second respondent, FIR came to be registered in Crime No.173 of 2018, dated 26.10.2020 against the petitioner for the offence under Sections 120(b), 406, 420, 468 and 471 IPC.
3. When the matter was taken up for hearing on 22.02.2022, a learned Judge of this Court, after considering the submissions made by the learned counsel on either side, referred the matter to Mediation and also suo motu https://www.mhc.tn.gov.in/judis 2/20 Crl.O.P.(MD)No.293 of 2019 impleaded the Tamil Nadu Small Industries Development Corporation Limited (SIDCO) as third respondent. But subsequently, mediation report was received as mediation ended in failure.
4. Admittedly, the petitioner was the then Secretary of an Association in the name and style of M/s.Madurai Hosiery Industries Association. The said Association was formed for setting up a private industrial estate and in pursuance of the same, the Association had purchased 68.64 Acres of land at Vedathakulam and Vallakundu Village, Madurai. As per the requisition made by the Association and the proposal of the SIDCO, the Government of Tamil Nadu Government has passed an order in G.O.Ms.No.294 Industries Department, dated 23.07.1992, accepting the proposal of Chairman and Managing Director, SIDCO to treat the industrial estate to be setup by Madurai Hosieries Association at Vedathakulam and Vallakundu Village, Madurai on par with the SIDCO industrial estates for the purpose of grant of state capital, subsidy and etc.
5. It is also not in dispute that after formation of the plots, Plot No.111 to an extent of 25 cents was allotted to M/s.Kannan & Kannan and in pursuance of the same, a sale deed was executed and registered vide document, dated 03.06.1993 by the said Association in favour of the defacto complainant, the second respondent herein, in her capacity as the proprietor of the allottee M/s.Kannan & Kannan knitwears.
https://www.mhc.tn.gov.in/judis 3/20 Crl.O.P.(MD)No.293 of 2019
6. The case of the prosecution is that after the said purchase, the second respondent has become the absolute owner of the Plot No.111 in Madurai Hosiery Industries Association (MHIA) industrial estate; that the second respondent did not enter into any construction agreement with the SIDCO, but the SIDCO constructed a shed in the petitioner's plot by spending a sum of Rs. 9,26,000/- as per the calculation of the petitioner; that the Tamil Nadu Industrial Investment Corporation (TIIC) provided construction loan and the amount was spent by SIDCO for the construction of the shed; that the SIDCO ought not to have constructed a shed without informing and obtaining written permission from the second respondent, but anyway the second respondent has accepted her responsibility to pay the amount spent by SIDCO for construction of the shed with some conditions; that the SIDCO after construction of the shed has not informed the second respondent through written communication to hand over the keys of the shed; that the shed was not handed over to the second respondent either by SIDCO or by the petitioner, but on the other hand, the SIDCO Manager colluded with the petitioner and in pursuance of the same, the petitioner had trespassed into the second respondent's property and permitted their henchman to occupy the premises illegally and was getting Rs.1 lakh from the illegal occupants, but showing only Rs.25,000/- per month on record; that the petitioner got wrongful gain to the tune of more than Rs.1 Crore till the date of complaint https://www.mhc.tn.gov.in/judis 4/20 Crl.O.P.(MD)No.293 of 2019 and that the SIDCO and the petitioner colluded together to cause wrongful loss to the second respondent and as such, both are legally liable to pay compensation of Rs.1 Crore.
7. It is further case of the prosecution that the petitioner cannot have any legal right to trespass upon the property and have illegal earning by permitting their persons to occupy the property illegally; that the amount collected by the petitioner has to be paid to SIDCO on behalf of the second respondent, but SIDCO Manager was dancing to the tunes of the petitioner paving way for MAHIA to have wrongful gain; that though the petitioner having received the legal notice of the second respondent, has not chosen to send any reply and that thereby, the petitioner and the persons who helped him, had committed the offences punishable under Sections 120(b), 406, 468 and 471 IPC.
8. According to the petitioner, he was the Secretary of MAHIA and already his tenure came to an end and he was holding the post only for a period of three years, but the second respondent has not raised any charge or allegations against other office bearers of MAHIA or the successor in Office to the petitioner.
9. It is evident from the records that the plots in the Industrial Estate were sold on specific conditions that the allottee should pay the development cost https://www.mhc.tn.gov.in/judis 5/20 Crl.O.P.(MD)No.293 of 2019 besides the cost of the plot to the TANSIDCO; that the shed will be of uniform design and constructed by the contractor selected by the association under the supervision of TANSIDCO and that no sale, lease or assumption of the plot would be permitted.
10. The petitioner's case is that despite the prohibition of transfer, sale lease, or any other kind of alienation of the plot allotted to the allottees, the second respondent has sold Plot No.111 to M/s.TEE VEE kintwears Private Limited vide sale deed, dated 31.03.1994 and that therefore, for all legal and practical purposes, the second respondent is no longer the owner of the land in Plot No.111 at Madurai Hosiery Industrial Estate.
11. The petitioner's further case is that the second respondent and some other allottees who borrowed loan from TIIC through SIDCO for construction of sheds failed to repay the loan amount and consequently, the SIDCO pressurized the association to make good the loss caused; that the Executive committee of MHIA decided to transfer certain lands owned by it to TANSIDCO to make good the loss incurred by it to an extent of Rs.5,92,94,211/- towards construction of work sheds and infrastructural facilities and on the basis of which, a sale deed, dated 24.07.2000 was executed in favour of TANSIDCO. https://www.mhc.tn.gov.in/judis 6/20 Crl.O.P.(MD)No.293 of 2019
12. It is the further case of the petitioner that since the second respondent or the subsequent purchaser from her has failed to pay the outstanding amount payable towards construction cost of the shed, the constructed shed in Plot No.111 was not handed over to them and the possession of the same has been with the association; that the subsequent purchaser M/s.TEE VEE knitwears made a request for regularization of the allotment and the association sent a reply stating that there were arrears payable to the association towards TIIC loan and directed the subsequent purchaser to pay the cost of construction of the shed along with amounts due to the association and take possession of the shed and that since the second respondent or the subsequent purchaser have not chosen to pay the amount due, the association rented out the superstructure in Plot No.111 in favour of one Pankajkumar for monthly rent; that subsequently, SIDCO issued a notice to the said tenant calling upon him to show cause as to why an order of eviction should not be passed under the provisions of Tamil Nadu Public Premises (Eviction of Unauthorized Occupants) Act, 1975; that the said order was under challenge in W.P.(MD)No.16681 of 2013 by the lessee K. Pankajkumar and this Court has disposed of the petition, permitting the lessee to submit explanation within four weeks and thereafter, the SIDCO shall pass orders on merits.
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13.It is further case of the petitioner that in the meanwhile, the second respondent has sent a legal notice, dated 14.05.2018, stating that the subsequent purchaser did not acquire any legal right over the Plot No.111; that subsequently, the second respondent had given a complaint to the first respondent Police and investigation was also conducted and that thereafter, the second respondent filed a private complaint in Crl.M.P.No.4311 of 2018 and as per the order passed by the learned Judicial Magistrate No.II, Madurai, the present FIR came to be registered.
14. The learned counsel for the petitioner would submit that the second respondent gave a letter of undertaking, permitting TANSIDCO to secure loan from TIIC to construct the shed and the second respondent would pay the loan with interest from the date of disbursement and hence, the second respondent cannot taken a contrary stand, now taken in the impugned FIR that the loan was obtained and the shed was constructed without her consent and permission.
15. No doubt, the petitioner has taken a specific stand that the possession of the constructed shed in Plot No.111 has not been handed over to the second respondent and the same has been in possession of their association. https://www.mhc.tn.gov.in/judis 8/20 Crl.O.P.(MD)No.293 of 2019
16. After suo motu impleadment of SIDCO as third respondent, its Branch Manager at Madurai, has filed an affidavit levelling various allegations and charges against the petitioner's association. In the said affidavit, it has been stated that a tripartite agreement was entered on 16.03.1993 between MAHIA -the owner, SIDCO -the Co-ordinator and L & T- the Contractor, that the total project cost of MAHIA was Rs.1486.96 lakhs inclusive of TANSIDCO's service charge of Rs.44.54 lakhs, against which MAHIA paid only Rs1056.01 lakhs and the balance cost was met from IID funds of Rs.220 lakhs and SIDCO fund Rs.210.94 lakhs; that the SIDCO has also paid to SIDBI, Government and TIIC on behalf of MAHIA and as per their calculation the total amount due to be paid by MAHIA as on 31.12.1998 comes to Rs.5,92,94,211/- and after addition of interest calculated upto 23.07.2000, at Rs.1,20,76,254/- totally Rs.7,13,70,465/-.
17. In the affidavit, it has been further stated that in order to pay the dues, MAHIA has agreed to sell their 27 vacant sheds, an extent of 16.233 acres and accordingly, the property was transferred to SIDCO, that the SIDCO subsequently came to know that there is a short fall of land upto 1.199 acres in the property sold by MAHIA; that the MAHIA has sublet seven work sheds without the knowledge of the SIDCO and utilized the rental amount for its own https://www.mhc.tn.gov.in/judis 9/20 Crl.O.P.(MD)No.293 of 2019 purpose till 2020 and after addition of the subsequent interest, the total amount due by MAHIA to the SIDCO comes to Rs.17,19,52,241/- .
18. At the out set, this Court is constrained to say that in the present proceedings under Section 482 Cr.P.C, this Court cannot go into the disputes inter se between the petitioner's association and SIDCO and it is for them to sort out their disputes through appropriate proceedings.
19. In the case on hand, the only point that has to be seen is as to whether the second respondent has shown any prima facie case for sustaining the FIR registered against the petitioner and for proceeding further.
20. The learned counsel for the second respondent would submit that the SIDCO has sent a reply to the Deputy Superintendent of Police, Oomachikulam Sub Division, Madurai, dated 10.08.2018 in response to the complaint of the second respondent and whereunder, SIDCO has specifically admitted that the Plot No.111 in Industrial estates is belonging to the second respondent and in case of payment of amount due along with interest, they are ready to hand over the title deed and in the second letter dated 08.12.2019, the Branch Manager of SIDCO has also specifically admitted that Plot No.111 belongs to the second respondent.
https://www.mhc.tn.gov.in/judis 10/20 Crl.O.P.(MD)No.293 of 2019
21. But it is pertinent to note that the second respondent has filed a suit in O.S.No.436 of 2019 against two persons, Meenakshi and R.M.Lakshmanan Owners of M/s.TEE VEE knitwears, claiming the relief of declaration that the property in plot No.111 at MAHIA Industrial Estate belongs to the second respondent and for permanent injunction restraining the defendants and their men from in any manner interfering with the possession of the second respondent and to declare that the sale deed dated 31.03.1994 in favour of the defendant therein as invalid. Since the defendants therein had remained ex-parte, decree has been passed on 17.08.2020, wherein declaration that the suit property is belonging to the second respondent was granted.
22. But it is evident from the judgment and decree that the District Munsif has recorded as if, the suit is decreed partly and in the judgment, he has specifically observed that he was not satisfied with the possession of the second respondent, but granted all the reliefs claimed by the second respondent. In the said suit, the second respondent has taken a stand as if the sale deed was executed for name sake and since no consideration was passed to the second respondent, the sale deed executed in favour of the defendant therein is invalid and null and void.
https://www.mhc.tn.gov.in/judis 11/20 Crl.O.P.(MD)No.293 of 2019
23. As already pointed out, the petitioner has stated that the subsequent purchaser from the second respondent had approached the MAHIA Association seeking for regularization of assessment of Plot No.111, for which, the association sent a reply, directing the subsequent purchaser to pay all the amounts due by the second respondent.
24. At this juncture, it is necessary to refer the judgment of the Hon'ble Supreme Court in State of Haryana and Ors. v. Ch. Bhajan Lal and Others reported in AIR 1992 SCC 426, wherein the Hon'ble Apex Court had laid down the following categries of the case in which, the Court can quash the criminal proceedings.
“(1) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the Accused; (2) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code; (3) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the Accused; (4) where the allegations in the FIR do not constitute a cognizable offence but constitute only https://www.mhc.tn.gov.in/judis 12/20 Crl.O.P.(MD)No.293 of 2019 a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code; (5) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the Accused; (6) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party; (7) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the Accused and with a view to spite him due to private and personal grudge. ”
25. A perusal of the FIR would disclose that the case on hand clearly falls within the ambit of first, third and fifth categories of seven categories enlisted in the above judgement. Moreover, as rightly contended by the learned counsel for the petitioner, the dispute canvassed by the petitioner can easily be concluded as a dispute of civil in nature. The Hon'ble Apex Court in Mithesh Kumar Sha Vs. State of karnataka in Crl.A.No.1285 of 2021, dated 26.10.2021 by referring to the earlier judgments in Randheer Sing Vs. State of U.P and others has reiterated the principles that criminal proceedings must not be used as instruments of harassment and the relevant passages is extracted hereunder. https://www.mhc.tn.gov.in/judis 13/20 Crl.O.P.(MD)No.293 of 2019 “33. ….There can be no doubt that jurisdiction under Section 482 of the Cr.P.C. should be used sparingly for the purpose of preventing abuse of the process of any court or otherwise to secure the ends of justice. Whether a complaint.
10. Criminal Appeal No. 932 of 2021 (decided on 02.09.2021) discloses criminal offence or not depends on the nature of the allegation and whether the essential ingredients of a criminal offence are present or not has to be judged by the High Court. There can be no doubt that a complaint disclosing civil transactions may also have a criminal texture. The High Court has, however, to see whether the dispute of a civil nature has been given colour of criminal offence. In such a situation, the High Court should not hesitate to quash the criminal proceedings as held by this Court in Paramjeet Batra (supra) extracted above.”
47. Moreover, this Court has at innumerable instances expressed its disapproval for imparting criminal color to a civil dispute, made merely to take advantage of a relatively quick relief granted in a criminal case in contrast to a civil dispute. Such an exercise is nothing but an abuse of the process of law which must be discouraged in its entirety.
26. It is also necessary to refer the observation of Hon'ble Supreme Court made in Mitesh Kumar J. Sha Vs. The State of Karnataka and Others reported in AIR 2021 SC 5298 :
“It is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. https://www.mhc.tn.gov.in/judis 14/20 Crl.O.P.(MD)No.293 of 2019 This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors....There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure though criminal prosecution should be deprecated and discouraged.”
27. In Mithesh Kumar J.Sha's case referred supra, the Hon'ble Apex Court has also reiterated the position that cloaking a civil dispute with a criminal nature, in a bid to get quicker relief is an abuse of process of law, which must be discouraged.
28. In the case no hand, as already pointed out, the second respondent has alleged that the petitioner and the persons who helped him, had committed the offence punishable under Section 120(b), 406, 420, 468 and 471 IPC. But this Court is at loss to understand as to how the second respondent has listed out the provisions of law without raising any averment or allegations so as to attract the said offences, except alleging that they had colluded together and misappropriated the amount and thereby cheated the second respondent and also caused criminal breach of trust.
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29. While a criminal breach of trust as postulated under section 405 of the IPC, entails misappropriation or conversion of another’s property for one’s own use, with a dishonest intention, cheating too on the other hand as an offence defined under section 415 of the IPC, involves an ingredient of having a dishonest or fraudulent intention which is aimed at inducing the other party to deliver any property to a specific person. Both the sections clearly prescribed ‘dishonest intention’, as a pre-condition for even prima facie establishing the commission of said offences.
30. In the case on hand, the petitioner has not raised any averments so as to infer that the offence alleged by him were committed in furtherance of a dishonest or fraudulent intention.
31. Section 471 of IPC deals with the concept of using a forged document as a genuine one and it states that any individual, who dishonestly or fraudulently makes use of any document as genuine, which they know to be forged or have a reason to believe that such document is forged, then such individual shall be punished in the same manner as if they have forged such document.
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32. Section 468 applies only to the case where forgery is for the purpose of cheating. It has been described as involving the proximity of one or other of the two elements of dishonesty or fraud. Forgery is thus a means to an end, that end being the wrongful possession or retention of property. This must be the intention of the forger, thoughts are not necessary for the cheating motive which makes him the abettor of the cheat.
33. As rightly contended by the learned counsel for the petitioner, there was absolutely no averments or materials to show that there was a forgery and that the forged documents have been used as a genuine one and that thereby, committed the offence of cheating.
34. As already pointed out, the second respondent after purchasing the property, violating the terms of the allotment, had sold the property to a third party within 16 months, since her purchase and lodging the complaint in October 2018, alleging that the shed was constructed without her permission and consent and that subsequently, she herself filed a suit to declare that the said property belongs to her and got an ex-party decree.
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35. On considering the entire facts and circumstances of the case, this Court has no hesitation to hold that the second respondent, by raising the above complaint, has been attempting to convert the civil dispute into a criminal dispute and this Court concludes that permitting the impugned FIR to sustain and permitting the prosecution to proceed further would clearly amount to abuse of process of law and as such the proceedings in FIR against the petitioner is liable to be quashed.
36. In the result, the Criminal Original Petition is allowed and the impugned FIR in Crime No.173 of 2018, dated 26.10.2018 on the file of the first respondent is quashed. Consequently, connected Miscellaneous Petition is closed.
02.09.2022 Index : Yes/No Internet : Yes/No das Note : In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.
https://www.mhc.tn.gov.in/judis 18/20 Crl.O.P.(MD)No.293 of 2019 To
1.The Sub-Inspector of Police, Karuppayoorani Police Station, Madurai.
2. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis 19/20 Crl.O.P.(MD)No.293 of 2019 K.MURALI SHANKAR, J.
das Crl.O.P.(MD)No.293 of 2019 and Crl.M.P.(MD)No.132 of 2019 02.09.2022 https://www.mhc.tn.gov.in/judis 20/20