Madras High Court
Ramasamy vs The State Rep By on 7 November, 2019
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.O.P.(MD) No.10077 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 07.11.2019
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRL.O.P (MD) No.10077 of 2018
and
Crl.M.P.(MD) Nos.4508 and 4509 of 2018
Ramasamy ... Petitioner/A6
Vs
1.The State rep by
The Inspector of Police,
Vikramasingapuram Police Station,
Tirunelveli District
Crime No.45 of 2012
2.S.Krishnakanthan ... Respondents
PRAYER: Criminal Original Petitions filed under Section 482 of
Cr.P.C, praying to call for the records relating to C.C.No.8 of 2018
pending on the file of the Judicial Magistrate, Ambasamudram and
quash the same.
For Petitioner : Mr.S.Deenadhayalan
For Respondents : Mr.K.Suyambulinga Bharathi, G.A.
(Crl. Side) for R1
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Crl.O.P.(MD) No.10077 of 2018
ORDER
This petition has been filed to quash the criminal proceedings in C.C.No.8 of 2018 on the file of the Judicial Magistrate, Ambasamudram, Tirunelveli District, having been taken cognizance for the offences under Sections 147, 468 and 120(B) I.P.C. as against the petitioner/A6.
2.The learned counsel appearing for the petitioners would submit that there are totally 8 accused, in which, the petitioner is arraigned as A6. On the basis of the complaint lodged by the 2nd respondent, the 1st respondent registered the case with the allegation that the house and shop situated at S.No.565, Vickramasingapuram Village, Tirunelveli District are exclusively belongs to the 2nd respondent/defacto complainant. However, A1 projected herself as if she is the lawful owner of the said property and sold out the same to A2 on 09.12.2009 through a sale deed, in which, A3 and A4 stood as witnesses. Insofar as A5 and this petitioner are concerned, they also extended their co-operation for executing the sale deed in favour of A2. The entire transaction has been taken place with the conspiracy of A7 and A8.
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3.The learned counsel appearing for the petitioner submitted that insofar as the offence of forgery is concerned, there is absolutely no allegation to connect the petitioner to the commission of the offence of forgery. When there is absolutely no averment to attract the other offences, the 1st respondent simply charged the petitioners for the offence under Sections 147, 468 and 120(B) I.P.C. To connect the petitioners, there is absolutely no averments to attract the offence under Section 120(B) I.P.C. The Hon'ble Supreme Court of India categorically held that making a counter claim in respect of a particular property through a sale deed executed by a person claiming to be the owner of the same cannot be termed as forgery unless it is specifically alleged that impersonation has been taken place and the signature of the real owner has been forged for executing such sale deed. He further submitted that insofar as the offence under Section 147 I.P.C. is concerned, there is absolutely no averments and allegations to attract the said offence. Nowhere, unlawful assembly made by the petitioners and as such, the entire proceedings are vitiated and are liable to be quashed.
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4.Per contra, the learned Government Advocate (criminal side) submitted that on the complaint lodged by the 2nd respondent, a case has been registered in crime No.45 of 2012 for the offences under Sections 147, 417, 420, 468 and 471 I.P.C. However, after completing the investigation, the 2nd respondent filed the final report for the offences under Sections 147, 417, 420, 468, 471 and 120(B) I.P.C. as against 8 accused persons, in which, the petitioner is arraigned as A6 and as far as this petitioner is concerned, he has been charged for the offences under Sections 147, 468 and 120(B) I.P.C. alleging that all the accused unlawfully assembled and conspired together and without right over the property, executed the sale deed through A1 in favour of A2 with the co-operation of A5 and this petitioner and A3 and A4 stood as witnesses to the said document. Insofar as A7 and A8/these petitioners are concerned, they are the key persons to execute the sale deed in favour of A2 through A1. Therefore, all the accused have conspired together and committed the offences and hence, he prayed for dismissal of this petition.
5.Heard the learned counsel appearing for the petitioner as well as the learned Government Advocate (criminal side) appearing for the 1st respondent and also perused the materials available on records. 4/12 http://www.judis.nic.in Crl.O.P.(MD) No.10077 of 2018
6.The petitioner is arraigned as A6 and he has been charged for the offences under Sections 147, 468 and 120(B) I.P.C. According to the case of prosecution, this petitioner along with A5 has extended his co-operation to execute the sale deed. A1 is the real owner of the property and she has derived the property from her ancestors. In fact, the 2nd respondent filed a suit in O.S.No.262 of 2009 on the file of the Additional District Munsif, Ambasamudram as against A1 and others and the same was dismissed vide order dated 27.04.2019. According to the learned counsel for the petitioners, A1 derived title over the disputed property by the sale deed dated 02.11.1971 executed by the mother of the 2nd respondent/defacto complainant.
7.It is relevant to rely upon the judgment of the Hon'ble Supreme Court of India passed in Crl.A.No.255 of 2019 dated 12.02.2019 in the case of Sau. Kamal Shivaji Pokarnekar vs. the State of Maharashtra & ors., as follows:-
"4. The only point that arises for our consideration in this case is whether the High Court was right in setting aside the order by which process was issued. It is settled law that the Magistrate, at the stage 5/12 http://www.judis.nic.in Crl.O.P.(MD) No.10077 of 2018 of taking cognizance and summoning, is required to apply his judicial mind only with a view to taking cognizance of the offence, or in other words, to find out whether a prima facie case has been made out for summoning the accused persons. The learned Magistrate is not required to evaluate the merits of the material or evidence in support of the complaint, because the Magistrate must not undertake the exercise to find out whether the materials would lead to a conviction or not.
5. Quashing the criminal proceedings is called for only in a case where the complaint does not disclose any offence, or is frivolous, vexatious, or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same. It is not necessary that a meticulous analysis of the case should be done before the Trial to find out whether the case would end in conviction or acquittal. If it appears on a reading of the complaint and consideration of the allegations therein, in the light of the statement made on oath that the ingredients of the offence are disclosed, 6/12 http://www.judis.nic.in Crl.O.P.(MD) No.10077 of 2018 there would be no justification for the High Court to interfere.
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9. Having heard the learned Senior Counsel and examined the material on record, we are of the considered view that the High Court ought not to have set aside the order passed by the Trial Court issuing summons to the Respondents. A perusal of the complaint discloses that prima facie, offences that are alleged against the Respondents. The correctness or otherwise of the said allegations has to be decided only in the Trial. At the initial stage of issuance of process it is not open to the Courts to stifle the proceedings by entering into the merits of the contentions made on behalf of the accused. Criminal complaints cannot be quashed only on the ground that the allegations made therein appear to be of a civil nature. If the ingredients of the offence alleged against the accused are prima facie made out in the complaint, the criminal proceeding shall not be interdicted."7/12
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8.It is also relevant to rely upon the judgment of the Hon'ble Supreme Court of India passed in Crl.A.No.579 of 2019 dated 02.04.2019 in the case of Devendra Prasad Singh Vs. State of Bihar & Anr., as follows:-
" 12.So far as the second ground is concerned, we are of the view that the High Court while hearing the application under Section 482 of the Cr.P.C. had no jurisdiction to appreciate the statement of the witnesses and record a finding that there were inconsistencies in their statements and, therefore, there was no prima facie case made out against respondent No.2. In our view, this could be done only in the trial while deciding the issues on the merits or/and by the Appellate Court while deciding the appeal arising out of the final order passed by the Trial Court but not in Section 482 Cr.P.C. proceedings.
13.In view of the foregoing discussion, we allow the appeal, set aside the impugned order and restore the aforementioned complaint case to its original file for being proceeded with on merits in accordance with law.8/12
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9.Recently, the Hon'ble Supreme Court of India held in respect of the very same issue in Crl.A.No.1572 of 2019 - Central Bureau of Invstigation Vs. Arvind Khanna, dated 17.10.2019 wherein, it has been held as follows:
“19.After perusing the impugned order and on hearing the submissions made by the learned senior counsels on both sides, we are of the view that the impugned order passed by the High Court is not sustainable. In a petition filed under Section 482 of Cr.P.C., the High Court has recorded findings on several disputed facts and allowed the petition. Defence of the accused is to be tested after appreciating the evidence during trial. The very fact that the High Court, in this case, went into the most minute details, on the allegations made by the appellant-C.B.I., and the defence put-forth by the respondent, led us to a conclusion that the High Court has exceeded its power, while exercising its inherent jurisdiction under Section 482 Cr.P.C.
20.In our view, the assessment made by the High Court at this stage, when the matter has been taken cognizance by the Competent Court, is completely incorrect and uncalled for.” The above judgments are squarely applicable to this case and as such, the points raised by the petitioners cannot be considered by this Court under Section 482 Cr.P.C.9/12
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10.Considering the above said judgments, this Court is of the view that there are specific allegations as against the petitioner. Further, the mixed question of facts can not be considered by this Court that too under Section 48 of Cr.P.C. Further, this Court today i.e. On 07.11.2019 dismissed the quash petition filed by A7 and A8 in Crl.O.P.(MD) No.3921 of 2018.
11.In view of the above discussions, this criminal original petition is dismissed. Consequently, connected miscellaneous petitions are also dismissed. The 1st respondent is directed to complete the investigation and file the final report, within a period of six months from the date of receipt of a copy of this order. The personal appearance of the petitioner before the trial Court is dispensed with, except the dates on which, the trial Judge insisted the petitioner for his personal appearance.
07.11.2019 Internet:Yes Index:Yes/no Arul 10/12 http://www.judis.nic.in Crl.O.P.(MD) No.10077 of 2018 To
1.The Inspector of Police, Vikramasingapuram Police Station, Tirunelveli District.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
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Arul Order made in CRL.O.P (MD) No.10077 of 2018 07.11.2019 12/12 http://www.judis.nic.in