Madras High Court
Dhanraj N. Kochar vs / on 16 August, 2022
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.O.P.Nos.15716, 15717, 24431 of 2017 & 8609 of 2019
Crl.M.P.Nos.9801, 9802, 11120, 11121, 14139, 14140 of 2017 & 4596 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 04.08.2022 Pronounced on : 16.08.2022
CORAM:
THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN
Crl.O.P.Nos.15716, 15717, 24431 of 2017 & 8609 of 2019
Crl.M.P.Nos.9801, 9802, 11120, 11121, 14139, 14140 of 2017 & 4596 of 2019
Crl.O.P.No.15716 of 2017
1. Dhanraj N. Kochar
2. Inderchand Jain ... Petitioners/Accused No.1 & 2
/versus/
1.State: Represented by
The Inspector of Police,
CCB, EDF II, Team IX-A,
Vepery, Chennai 600 007.
Crime No.100 of 2014.
2. N.R.Vatchala ... Respondents
Prayer : Criminal Original Petition has been filed under Section 482 of Cr.P.C., to
call for the records in C.C.No.1371 of 2017 on the file of the Learned Metropolitan
Magistrate for CCB & CB-CID, Egmore at Allikulam, Chennai in Crime No.100 of
2014 on the file of the 1st respondent and quash the same.
_____________
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https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.15716, 15717, 24431 of 2017 & 8609 of 2019
Crl.M.P.Nos.9801, 9802, 11120, 11121, 14139, 14140 of 2017 & 4596 of 2019
For Petitioners : Mr.A.Ramesh, Senior Counsel for
Mr.B.A.Sujay Prasanna
For Respondents : Mr.N.S.Suganthan,
Government Advocate(Crl.Side)
for R1
Mr.A.Navaneetha Krishnan, Senior Counsel for
Mr.V.Jayaprakash Narayanan
Legal heirs of N.R.Vatchala
Crl.O.P.No.15717 of 2017
1. Dhanraj N. Kochar
2. Inderchand Jain ... Petitioners/Accused No.1 & 2
/versus/
1.State: Represented by
The Inspector of Police,
CCB, EDF II, Team IX-A,
Crime No.99 of 2014,
Vepery, Chennai 600 007.
2. N.R.Vatchala ... Respondents
Prayer : Criminal Original Petition has been filed under Section 482 of Cr.P.C., to
call for the records in C.C.No.692 of 2017 on the file of the Learned Metropolitan
Magistrate for CCB & CB-CID, Egmore at Allikulam, Chennai in Crime No.99 of
2014 on the file of the 1st respondent and quash the same.
_____________
Page No.2/27
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.15716, 15717, 24431 of 2017 & 8609 of 2019
Crl.M.P.Nos.9801, 9802, 11120, 11121, 14139, 14140 of 2017 & 4596 of 2019
For Petitioners : Mr.A.Ramesh, Senior Counsel for
Mr.B.A.Sujay Prasanna
For Respondents : Mr.N.S.Suganthan,
Government Advocate(Crl.Side)
for R1
Mr.A.Navaneetha Krishnan, Senior Counsel for
Mr.V.Jayaprakash Narayanan
Legal heirs of N.R.Vatchala
Crl.O.P.No.24431 of 2017
1. Dhanraj Kochar,
2. Ramesh Kumar, ... Petitioners/Accused 1 & 2
/versus/
1.State rep.by:
The Assistant Commissioner of Police,
Central Crime Branch,
EDF-II, Vepery,
Chennai.
2.N.R.Vatchala,
3.Thirunavukarasu,
Power agent of N.R.Vatchla,
C/o Saravana Real Estate,
No.36, North Usman Road,
T.Nagar, Chennai 600 017. ... Respondents/Defacto Complainants
_____________
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https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.15716, 15717, 24431 of 2017 & 8609 of 2019
Crl.M.P.Nos.9801, 9802, 11120, 11121, 14139, 14140 of 2017 & 4596 of 2019
Prayer: Criminal Original Petition has been filed under Section 482 of Cr.P.C., to
call for the records and quash all the proceedings in C.C.No.47 of 2017 on the file
of the Learned Metropolitan Magistrate, CCB-CBCID, Egmore at Allikulam,
Chennai in Crime No.43 of 2014 on the file of the Inspector of Police, Central
Crime Branch, Chennai.
For Petitioner : Mr.A.Ramesh, Senior Counsel for
Mr.B.A.Sujay Prasanna
For Respondents : Mr.N.S.Suganthan,
Government Advocate(Crl.Side)
for R1
Mr.A.Navaneetha Krishnan, Senior Counsel for
Mr.V.Jayaprakash Narayanan
Legal heirs of N.R.Vatchala
Crl.O.P.No.8609 of 2019
Suresh Kumar ... Petitioner/Accused No.3
/versus/
1. State rep.by:
The Inspector of Police,
EDF-II, Team IX-A,
Central Crime Branch,
Commissioner of Police Office,
_____________
Page No.4/27
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.15716, 15717, 24431 of 2017 & 8609 of 2019
Crl.M.P.Nos.9801, 9802, 11120, 11121, 14139, 14140 of 2017 & 4596 of 2019
Egmore, Chennai.
2.N.R.Vatchala
3.Thirunavukarasu
Power agent of N.R.Vatchla,
C/o Saravana Real Estate,
No.36, North Usman Road,
T.Nagar, Chennai 600 017. ... Respondents
Prayer: Criminal Original Petition has been filed under Section 482 of Cr.P.C., to
call for the records and quash all the proceedings in C.C.No.1371 of 2017 on the
file of the learned Metropolitan Magistrate, CCB-CBCID, Egmore, Chennai in
Crime No.100 of 2014 on the file of the Inspector of Police, Central Crime Branch,
Chennai.
For Petitioner :Mr.B.A.Sujay Prasanna
For Respondents :Mr.N.S.Suganthan,
Government Advocate(Crl.Side)
for R1
Mr.A.Navaneetha Krishnan
Senior Counsel for
Mr.V.Jayaprakash Narayanan
Legal heirs of N.R.Vatchala
R3-No appearance
_____________
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Crl.O.P.Nos.15716, 15717, 24431 of 2017 & 8609 of 2019
Crl.M.P.Nos.9801, 9802, 11120, 11121, 14139, 14140 of 2017 & 4596 of 2019
COMMON ORDER
Crl.O.P.No.15716 of 2017 & 8609 of 2019:-
(i) N.R.Vatchala, the complainant filed an application before the Chief Metropolitan Magistrate, Egmore, under Section 156(3) of Cr.P.C, in Crl.M.P.No.7321 of 2013 dated 29.10.2013, alleging that, her complaint before Commissioner of Police against the accused persons regarding grabbing of land by committing breach of trust, cheating and intimidating her not acted upon. Hence, the Learned Chief Metropolitan Magistrate, Egmore directed respondent police to investigate and file final report. Pursuant to the order of the Court in Crl.M.P.No.7321 of 2013, dated 29.10.2013, the 1st respondent police registered F.I.R in Crime No.100 of 2014 on 15.02.2014.
Crl.O.P.No.15717 of 2017:-
(ii). N.R.Vatchala, the complainant filed an application before the Chief Metropolitan Magistrate, Egmore, under Section 156(3) of Cr.P.C, in Crl.M.P.No.7319 of 2013 dated 29.10.2013, alleging that her complaint before _____________ Page No.6/27 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.15716, 15717, 24431 of 2017 & 8609 of 2019 Crl.M.P.Nos.9801, 9802, 11120, 11121, 14139, 14140 of 2017 & 4596 of 2019 Commissioner of Police against the accused persons regarding grabbing of land by committing breach of trust, cheating and intimidating her not acted upon. Hence, the Learned Chief Metropolitan Magistrate, Egmore directed the respondent police to investigate and file final report. Pursuant to the order of the Court in Crl.M.P.No.7319 of 2013 dated 29.10.2013, the 1st respondent police registered F.I.R in Crime No.99 of 2014 on 15.02.2014.
Crl.O.P.No.24431 of 2017:-
(iii). N.R.Vatchala, the complainant filed an application before the Chief Metropolitan Magistrate, Egmore, under Section 156(3) of Cr.P.C, in Crl.M.P.No.7322 of 2013 dated 29.10.2013, alleging that her complaint before Commissioner of Police against the accused persons regarding grabbing of land by committing breach of trust, cheating and intimidating her not acted upon. Hence, the Learned Chief Metropolitan Magistrate, Egmore directed the respondent police to investigate and file final report. Pursuant to the order of the Court in Crl.M.P.No.7322 of 2013 dated 29.10.2013, the 1st respondent police registered _____________ Page No.7/27 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.15716, 15717, 24431 of 2017 & 8609 of 2019 Crl.M.P.Nos.9801, 9802, 11120, 11121, 14139, 14140 of 2017 & 4596 of 2019 F.I.R in Crime No.43 of 2014 on 18.01.2014.
2. These three private complaints were filed on common facts that the complainant N.R.Vatchala was carrying on real estate business in the name and style of M/s.Saravana Real Estate. She entered into an unregistered sale agreement with one Ravichandran, for purchase of 3 acres of land situated in S.No.43 Part, Kolathur Village, Perambur Taluk, Chennai for consideration of Rs.15 lakhs. To develop her business, she borrowed Rs.2,25,000/- from Dhanraj Kochar, Inderchand Jain and Suresh Kumar in year 1988. As a security for the loan, she instructed her vendor Ravichandran to execute the sale deeds in favour of these three persons to an extent of 0.48 acre each. These three accused persons and the complainant had an oral agreement that, among them, on repayment of loan money with interest these three persons will execute the sale deeds in favour of the persons to whom the defacto complainant nominates. The said arrangement was made between them to avoid acquisition of property under Tamil Nadu Urban and Land Ceiling Act. It is alleged that, the entire 3 acres of lands was developed into _____________ Page No.8/27 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.15716, 15717, 24431 of 2017 & 8609 of 2019 Crl.M.P.Nos.9801, 9802, 11120, 11121, 14139, 14140 of 2017 & 4596 of 2019 residential plots and approval was obtained after gifting the area earmarked for public purposes to the local bodies. Three sale deeds were executed by these three accused persons as per oral arrangement and the instruction of the defacto complainant. The remaining three plots in the 1.44 acres of land, the accused persons without the knowledge and instruction of the defacto complainant in the year 1995 illegally sold to Mrs.Dur E.Shawar.
3. In this regard, the suit was filed by N.R.Vatchala through her power of attorney Thirunavukarasu, before the City Civil Court in O.S.No.2945 of 1999, interim injunction was granted. In spite of interim order, the accused persons sold the property to third parties. Pending suit, there was a compromise arrived between the parties and the accused agreed to sell the remaining plots and share 50% of the sale proceeds with the defacto complainant. However, in breach of the said compromise and against the spirit of compromise memo, they are refusing to sell the properties to the buyers identified by her as per the terms of compromise. _____________ Page No.9/27 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.15716, 15717, 24431 of 2017 & 8609 of 2019 Crl.M.P.Nos.9801, 9802, 11120, 11121, 14139, 14140 of 2017 & 4596 of 2019
4. With these averments, the complaints were filed in the year 2013 and taken up for investigation as per the direction of the Chief Metropolitan Magistrate, Egmore, in three Crime No.43 of 2014, Crime No.99 of 2014 and Crime No.100 of 2014.
5. On completion of the investigation, three reports filed and taken on file as C.C.No.1371 of 2017 against Dhanraj Kocher, Inderchand Jain and Suresh Kumar, as C.C.No.47 of 2017 against Dhanraj Kocher S/o.Nemichand and Ramesh Kumar S/o.Dhanraj Kocher and as C.C.No.692 of 2017 against Dhranraj Kocher S/o.Nemichand and Inderchand S/o.Dhanraj Kocher.
6. These accused persons have filed the present Criminal Original Petitions under Section 482 of Cr.P.C., to quash the complaints. Contending that, the case is a malicious prosecution initiated by the defacto complainant through her power agent to harass the petitioners. According to the petitioners, the property in dispute was purchased by them from Ravichandran and they are the absolute owners _____________ Page No.10/27 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.15716, 15717, 24431 of 2017 & 8609 of 2019 Crl.M.P.Nos.9801, 9802, 11120, 11121, 14139, 14140 of 2017 & 4596 of 2019 of the property. The defacto complainant claiming title to the property, has initiated suit and the suit was decreed in her favour. However, the petitioners herein preferred appeal and the Lower Appellate Court had reversed the finding of the trial Court. The Lower Appellate Court has observed that the sale consideration was paid by the petitioners herein. The defacto complainant claim that she paid the entire sale consideration and the property was purchased in six different names only to avoid acquisition of property under Tamil Nadu Urban and Land Ceiling Act was negatived by the Lower Appellate Court. Further, the contention they as a collateral security for the loan advanced by the petitioners property got registered in their name was also disbelieved. Thereafter, the defacto complainant has filed Second appeal before the High Court and same is pending.
7. The dispute between the defacto complainant and the accused persons primarily a civil dispute but by giving a criminal colour, the present complaints have been filed, after 18 years that too after launching a civil suit in the year 1985 and lost the same in the Lower Appellate Court. _____________ Page No.11/27 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.15716, 15717, 24431 of 2017 & 8609 of 2019 Crl.M.P.Nos.9801, 9802, 11120, 11121, 14139, 14140 of 2017 & 4596 of 2019
8. Mr.A.Ramesh, Learned Senior Counsel appearing for the petitioners submitted that the ingredient for offences under Sections 406, 420 and 506 (i) of I.P.C., are totally absent in the complaint.
9. Mr.A.Navaneetha Krishnan, Learned Senior Counsel appearing for the defacto complainant submitted that, the defacto complainant, who borrowed money from the accused persons, are financiers and had the habit of collecting exorbitant interest of 36% p.a. For the loan of Rs.2,25,000/- they got the property registered in their name as a security. After honouring the oral agreement in respect of three plots, due to hike in price they wanted to usurp the remaining plots for themselves. Thus, intentionally committed breach of trust and cheating. When same was questioned, they intimidated the De Facto Complainant and her Power Agent of the dire consequence. Hence, the private complaint.
10. To support their arguments, following judgments were submitted by the Learned Senior Counsel for the petitioners and the Learned Senior Counsel _____________ Page No.12/27 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.15716, 15717, 24431 of 2017 & 8609 of 2019 Crl.M.P.Nos.9801, 9802, 11120, 11121, 14139, 14140 of 2017 & 4596 of 2019 for the respondent/defacto complainant.
Petitioners:-
(i). G.Pankajakshi Amma -vs- Mathai Methew reported in (2004) 12 SCC 83.
(ii). Krishan Singh -vs- Gurpal Singh reported in (2010) 8 SCC 775.
(iii). Prem Kumar -vs- State of Rajasthan reported in (2016) SCC Online SC 923.
(iv). Farid Mallik -vs- State of W.B. reported in 2009 SCC Online Cal 224.
(v). CBI, SPE, SIU (X), New Delhi -vs- Duncans Agro Industries Ltd, Calcutta reported in (1996) 5 SCC 591.
(vi). Alphic Finance -vs- Sadasivan reported in (2001) 3 SCC 513.
(vii). Md.Ekhalque Alam -vs- The State of Bihar reported in 2012 SCC OnLine Pat 92.
(viii). K.G.Premshanker -vs- Inspector of Police reported in (2002) 8 SCC 87.
_____________ Page No.13/27 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.15716, 15717, 24431 of 2017 & 8609 of 2019 Crl.M.P.Nos.9801, 9802, 11120, 11121, 14139, 14140 of 2017 & 4596 of 2019
(ix). Rajeshbhai Muljibhai Patel -vs- State of Gujarat reported in (2020) 3 SCC 794.
(x). Babu Venkatesh and others -vs- State of Karnataka and another reported in (2022) 5 SCC 639.
Respondents:-
(i). Chand Devi Daga and others -vs- Manju K.Humatani and others reported in (2018) 1 SCC 71.
(ii). Ashwin Nanubhari Vyas -vs- State of Maharashtra and another reported in AIR 1967 SC 983.
11. From the materials placed by the prosecution to prove the charge against the petitioners for offences under Sections 406, 420 and 506(i) of I.P.C, this Court finds that these materials are contrary to the documentary evidence such as sale deeds duly registered. The defacto complainant alleging that, there was an unregistered oral sale agreement with the landlord Ravichandran in the year 1987 in _____________ Page No.14/27 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.15716, 15717, 24431 of 2017 & 8609 of 2019 Crl.M.P.Nos.9801, 9802, 11120, 11121, 14139, 14140 of 2017 & 4596 of 2019 respect of 3 acres of land and in the course of developing the land as residential plots, she borrowed Rs.2,25,000/- from Dhanraj Kocher and as a collateral security for the said loan and to avoid acquisition of property under Tamil Nadu Urban and Land Ceiling Act, she directed her vendor Ravichandran to register 0.48 cents each in the name of Dhanraj Kocher, Inderchand Jain and Suresh Kumar. However, the entire sale consideration was paid by the defacto complainant and the accused persons are only name lenders and they have no right to sell the property. However, taking advantage of the fact that the property stood in their name, Suresh Kumar S/o.Dhanraj Kochar, sold these three properties to Mr.Dur.E.Shawar, on 07.06.1995.
12. To be noted, regarding these transactions, the defacto complainant had initiated a suit in O.S.No.2945 of 1999 claiming the transaction between Ravichandran and the accused persons were benami transaction and the accused persons are only her name lender. The sale consideration for the property was given by her. Having filed the suit with facts contrary to the documentary evidence but _____________ Page No.15/27 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.15716, 15717, 24431 of 2017 & 8609 of 2019 Crl.M.P.Nos.9801, 9802, 11120, 11121, 14139, 14140 of 2017 & 4596 of 2019 relying upon the oral agreement on same set of facts, the present complaint filed after 18 years instituting the Civil Suit and 25 years after the sale deed registered in the name of the accused persons.
13. In view of this Court, in the complaint, it is admitted that, the transaction of the year 1987 is the benami transaction and the defacto complainant is the true owner of the properties, the complaint cannot be allowed to be investigated for the following reasons:-
(i). Admittedly, the defacto complainant to defeat the law, had engaged the accused persons as name lenders for the said transaction. Even assuming, if she has paid the sale consideration, any illegal transaction devised to defeat the law cannot be aided by Court orders.
(ii). As per the written document, the petitioners are the owner of the property since 1995. Challenging their title, the defacto complainant has already _____________ Page No.16/27 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.15716, 15717, 24431 of 2017 & 8609 of 2019 Crl.M.P.Nos.9801, 9802, 11120, 11121, 14139, 14140 of 2017 & 4596 of 2019 initiated Civil Suit and the matter is now pending in High Court as Second Appeal.
Therefore, after lapse of 25 years, from the date of purchase in the name of the accused and 14 years after instituting the Civil Suit, a criminal complaint by way of private complaint under Section 156(3) of Cr.P.C is obviously an afterthought with intent to harass the accused persons.
14. The dispute primarily a civil dispute, which has already being taken cognizance by the competent Court. Reversing the findings rendered by trial Court. The Lower Appellate Court has dismissed the suit filed by the defacto complainant and the matter is pending before the High Court by way of Second Appeal. In the said circumstances, it cannot be misconstrued that the property was entrusted to the accused persons and same being misappropriated, to attract offence under Section 406 of I.P.C.
15. The judgment of the Hon'ble Supreme Court in Central Bureau of Investigation, SPE, SIU (x), New Delhi -vs- Duncans Agro Industries Ltd., _____________ Page No.17/27 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.15716, 15717, 24431 of 2017 & 8609 of 2019 Crl.M.P.Nos.9801, 9802, 11120, 11121, 14139, 14140 of 2017 & 4596 of 2019 Calcutta reported in (1996) 5 SCC 591, wherein, it is stated as below:-
“27. In the instant case, a serious dispute has been raised by the learned counsel appearing for the respective parties as to whether on the face of the allegations, an offence of criminal breach of trust is constituted or not. In our view, the expression “entrusted with property” or “with any dominion over property” has been used in a wide sense in Section 405 IPC. Such expression includes all cases in which goods are entrusted, that is, voluntarily handed over for a specific purpose and dishonestly disposed of in violation of law or in violation of contract. The expression ‘entrusted’ appearing in Section 405 IPC is not necessarily a term of law. It has wide and different implications in different contexts. It is, however, necessary that the ownership or beneficial interest in the ownership of the property entrusted in respect of which offence is alleged to have been committed must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit. The expression ‘trust’ in Section 405 IPC is a comprehensive expression and has been used to denote various kinds of relationships like the relationship of trustee and beneficiary, bailor and bailee, master and servant, _____________ Page No.18/27 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.15716, 15717, 24431 of 2017 & 8609 of 2019 Crl.M.P.Nos.9801, 9802, 11120, 11121, 14139, 14140 of 2017 & 4596 of 2019 pledger and pledgee. When some goods are hypothecated by a person to another person, the ownership of the goods still remains with the person who has hypothecated such goods. The property in respect of which criminal breach of trust can be committed must necessarily be the property of some person other than the accused or the beneficial interest in or ownership of it must be in the other person and the offender must hold such property in trust for such other person or for his benefit. In a case of pledge, the pledged article belongs to some other person but the same is kept in trust by the pledgee. In the instant case, a floating charge was made on the goods by way of security to cover up credit facility. In our view, in such case for disposing of the goods covering the security against credit facility the offence of criminal breach of trust is not committed. In the facts and circumstances of the case, it, however, appears to us that the respondents moved the High Court only in 1991 although the first FIR was filed in 1987 and the second was filed in 1989. The CBI, therefore, got sufficient time to complete the investigation for the purpose of framing the charge.”
16. Even according to the complainant, out of 1.44 acres of land purchased in the name of accused persons, they have executed three sale deeds to _____________ Page No.19/27 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.15716, 15717, 24431 of 2017 & 8609 of 2019 Crl.M.P.Nos.9801, 9802, 11120, 11121, 14139, 14140 of 2017 & 4596 of 2019 the persons to whom she has directed and only for remaining three plots, there was some dispute in settling the money borrowed by her.
17. In the complaint, there is no whisper about her repayment of loan amount, which she admittedly borrowed from the accused persons. Therefore, to attract offence under Section 420 of I.P.C, the intention to deceive has to be made out. In case in hand, there is no material evidence to show that the accused had any intention to deceive. In the judgment, Alpic Finance Ltd -vs- P.Sadasivan reported in (2001) 3 SCC 513, has stated as below:-
“When there is dispute between the parties arising out of a transaction involving passing of valuable properties between them, the aggrieved person may have a right to sue for damages or compensation and at the same time, law permits the victim to proceed against the wrongdoer for having committed an offence of criminal breach of trust or cheating. Here the main offence alleged by the appellant is that the respondents committed the offence under Section 420 IPC and the case of the appellant is that the respondents have cheated him and thereby dishonestly induced him to deliver property. To deceive is to induce a man to believe that a _____________ Page No.20/27 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.15716, 15717, 24431 of 2017 & 8609 of 2019 Crl.M.P.Nos.9801, 9802, 11120, 11121, 14139, 14140 of 2017 & 4596 of 2019 thing is true which is false and which the person practising the deceit knows or believes to be false. It must also be shown that there existed a fraudulent and dishonest intention at the time of commission of the offence. There is no allegation that the respondents made any wilful misrepresentation. Even according to the appellant, the parties entered into a valid lease agreement and the grievance of the appellant is that the respondents failed to discharge their contractual obligations. In the complaint, there is no allegation that there was fraud or dishonest inducement on the part of the respondents and thereby the respondents parted with the property. It is trite law and common sense that an honest man entering into a contract is deemed to represent that he has the present intention of carrying it out but if, having accepted the pecuniary advantage involved in the transaction, he fails to pay his debt, he does not necessarily evade the debt by deception.”
18. Whereas, the defacto complainant had initiated the criminal prosecution belatedly, much after instituting the civil suit. Without any material evidence to show that she borrowed Rs.2,25,000/- from the accused persons and three sale deeds were executed in the name of the accused only as security. From _____________ Page No.21/27 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.15716, 15717, 24431 of 2017 & 8609 of 2019 Crl.M.P.Nos.9801, 9802, 11120, 11121, 14139, 14140 of 2017 & 4596 of 2019 1988, atleast till, she instituted the suit, she should have made an attempt to repay or paid the loan amount received, to prima facie show, the transaction between her and the accused persons was only money lending and borrowing. The properties were purchased in the name of the accused in their fiduciary capacity.
19. The complaint has been given without proper supportive evidence. To believe that the accused persons are only name lenders and not the real owners. Merely based on the statements of the vendor, the defacto complainant and her agent, the respondent police has completed the investigation and filed final report.
20. This Court is of the view that the complaints are not sustainable, not only due to inordinate delay but also the dispute is essentially civil in nature and clearly been initiated to harass the accused persons.
21. The judgment of the Hon'ble Supreme Court in Kishan Singh -vs- Gurpal Singh reported in (2010) 8 SCC 775, wherein, it is stated that:-
_____________ Page No.22/27 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.15716, 15717, 24431 of 2017 & 8609 of 2019 Crl.M.P.Nos.9801, 9802, 11120, 11121, 14139, 14140 of 2017 & 4596 of 2019 “21. Prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding truth of its version. In case there is some delay in filing the FIR, the complainant must give explanation for the same. Undoubtedly, delay in lodging the FIR does not make the complainant's case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint is always fatal.
22. In cases where there is a delay in lodging an FIR, the court has to look for a plausible explanation for such delay. In the absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an afterthought or had given a coloured version of events. In such cases the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before the civil court may initiate criminal proceedings just to harass the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and _____________ Page No.23/27 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.15716, 15717, 24431 of 2017 & 8609 of 2019 Crl.M.P.Nos.9801, 9802, 11120, 11121, 14139, 14140 of 2017 & 4596 of 2019 persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case.”
22. This above observation of the Hon'ble Supreme Court squarely apply to the facts of the instant case.
23. While the trial is pending before the Learned Chief Metropolitan Magistrate Court, the defacto complainant N.R.Vatchala died on 20.10.2016. Since the defacto complainant died, the mandate given to Mr.Thirunavukarasu, the power agent of N.R.Vatchala gets ceased. Pending Criminal Original Petitions, the legal heirs of N.R.Vatchala has taken out applications to implead themselves in the above petitions.
_____________ Page No.24/27 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.15716, 15717, 24431 of 2017 & 8609 of 2019 Crl.M.P.Nos.9801, 9802, 11120, 11121, 14139, 14140 of 2017 & 4596 of 2019
24. This Court is of the view that since the complaint itself is born out of malice and not sustainable for the accused to undergo the ordeal of trial, no order warrants in these implead applications. Hence, Crl.M.P.Nos.12458, 12460, 12462 of 2022 are dismissed.
25. The petitioners, who are the legal heirs of deceased N.R.Vatchala shall participate in the pending civil proceedings by filing appropriate impleading petitions. The dismissal of these applications in the quash petitions shall no way prejudice their rights in participating in the civil proceedings.
26. Therefore, these Criminal Original Petitions are Allowed. The orders passed by Learned Chief Metropolitan Magistrate for CCB & CB-CID, Egmore at Allikulam, Chennai, in Crime No.100 of 2014, Crime No.99 of 2014 and Crime No.43 of 2014, on the file of the 1st respondent police are hereby quashed. Consequently, connected Miscellaneous Petitions are closed. _____________ Page No.25/27 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.15716, 15717, 24431 of 2017 & 8609 of 2019 Crl.M.P.Nos.9801, 9802, 11120, 11121, 14139, 14140 of 2017 & 4596 of 2019 16.08.2022 Index :Yes Internet :Yes/No. Speaking Order/Non-speaking Order bsm To:-
1.The Chief Metropolitan Magistrate, CCB-CBCID cases, Egmore @ Allikulam Chennai.
2.The Inspector of Police, CCB, EDF-II, Team IX-A, Vepery, Cehnnai.
3.The Public Prosecutor, High Court, Madras.
Dr.G.JAYACHANDRAN,J.
bsm Pre-delivery common order made in Crl.O.P.Nos.15716, 15717, 24431 of 2017 & 8609 of 2019 _____________ Page No.26/27 https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.15716, 15717, 24431 of 2017 & 8609 of 2019 Crl.M.P.Nos.9801, 9802, 11120, 11121, 14139, 14140 of 2017 & 4596 of 2019 16.08.2022 _____________ Page No.27/27 https://www.mhc.tn.gov.in/judis