Madras High Court
U.Saravanakumar vs R.Sivakumar on 17 August, 2022
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
Crl.O.P.No.6290 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.08.2022
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
Crl.O.P.No.6290 of 2022
and Crl.M.P.No.3525 & 3526 of 2022
1. U.Saravanakumar
2. U.Sabarikumar .. Petitioners / A3 & A4
Vs.
R.Sivakumar .. Respondent
Prayer: Criminal Original Petition filed under Section 482 of the Code of
Criminal Procedure to call for the records pertaining to the case in
C.C.No.9617 of 2021 pending on the file of the learned CCB & CBCID
Metropolitan Magistrate, Egmore, Chennai and quash the same.
For Petitioners : Mr.B.Arvind Srevatsa
For Respondent : Mr.N.Manoharan
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Crl.O.P.No.6290 of 2022
ORDER
This petition has been filed seeking to quash the proceedings in C.C.No.9617 of 2021 pending on the file of the learned CCB & CBCID Metropolitan Magistrate, Egmore, Chennai for the offences punishable under Sections 420, 466, 467, 468 and 469 of IPC and Sections 81, 82(a) and 83 of the Registration Act, 1908.
2. The petitioners are originally arrayed as A3 and A4. The defacto complainant, A1 and A2 are brothers. Private complaint has been filed by one of the brother who is a practicing lawyer and the second accused is a retired police officer.
3. The crux of the allegation is that the father of the petitioners and the defacto complainant purchased several properties and there were exchange of properties and exchange deed was executed between the father of the petitioners and one Rajammal. According to the defacto complainant the said Rajammal is not the wife of T.K.Ramachandran, whereas, the mother of the defacto complainant Mrs.Pattu is the wife of Mr.T.K.Ramachandran. After the demise of Mrs.Pattu, with the help of Mrs.Rajammal sale deed dated https://www.mhc.tn.gov.in/judis 2/8 Crl.O.P.No.6290 of 2022 15.10.2003 and settlement deed dated 23.06.2004 were executed. Therefore, it is contended that the entire document has been created by impersonating the mother of the defacto complainant.
4. The allegation against the present petitioners/A3 & A4 is that they are beneficiaries of the document and hence they are sought to be prosecuted for various offence.
5. Mr.B.Arvind Srevatsa, learned counsel appearing for the petitioners would submit that the petitioners were minors at the time when the settlement deed was executed on 23.06.2004. It is his contention that they are not parties to the document and therefore the alleged conspiracy cannot be fastened on the part of the petitioners/A3 and A4. The learned counsel further submitted that a civil suit has also been filed assailing the said document and the same is pending. The document has been executed in the year 2004 and there is serious dispute between the brothers and the petitioners were unnecessarily impleaded.
6. Whereas, Mr.N.Manoharan, learned counsel appearing for the https://www.mhc.tn.gov.in/judis 3/8 Crl.O.P.No.6290 of 2022 respondent/defacto complainant would submit that the petitioners are beneficiaries in those documents and therefore they should also be prosecuted. He has also submitted that if the petitioners file an affidavit to the effect that Mrs.Rajammal is not the mother of A1 and A2, he has no objection in allowing this quash petition.
7. At the outset, this Court is unable to countenance the submissions made by the learned counsel appearing for the respondent for demanding affidavit as to the status of the parties which are in dispute and the same is pending before a Civil Court. Such affidavit cannot be forced in a criminal proceedings.
8. The only allegation against these petitioners is that they are beneficiaries in the document stated to have been created by impersonation. It is relevant to note that it is not disputed that at the time of execution of the documents the so called sale deed and settlement deed, these petitioners were minors aged 11 and 8 years respectively and they are not parties to the document. They were only shown as beneficiaries in the document said to have been executed by one Mrs.Rajammal and A1 and A2. Therefore, merely https://www.mhc.tn.gov.in/judis 4/8 Crl.O.P.No.6290 of 2022 they are shown as beneficiaries and they are not parties to the documents, the allegation of conspiracy cannot be fastened against them. Further, there is no material to contend that these petitioners were parties to the conspiracy to cheat the respondent / defacto complainant. Further to attract the other offence under Section 420, 466, 467, 468 & 469 of IPC, the creation of forged document and forgery should be established.
9. Even the complaint itself indicate that these petitioners are not the authors of the documents and the documents were executed when they were minors. Therefore, none of the offence is made out against the petitioners. Such view of the matter, continuing the prosecution against the petitioners is nothing but abuse of process of law.
10. Further, the learned counsel appearing for the respondent/defacto complainant relied on a judgment of the Hon'ble Supreme Court in Ritesh Agarwal Vs. Securities and Exchange Board of India reported in (2008) 8 SCC 205 to contend that even minors can be penalized for the offence committed and he has laid much emphasized on paragraph 29, which is extracted hereunder:
https://www.mhc.tn.gov.in/judis 5/8 Crl.O.P.No.6290 of 2022 "29. Ritesh Agarwal and Deepak Agarwal are said to be minors. As they were minors having regard to the provisions of the Indian Contract Act, they could not have been proceeded against strictly in terms of the provisions of the said Act.
Apart from the actions taken by the Board, the persons who undertook those fraudulent actions may also be held to be guilty of making a mis-
representation and commission of fraud not only before the prospective purchasers of the shares but also before the statutory authority. The same, however, would itself not mean that a minor would not be penalized for entering into a contract which per se was not enforceable. A contract must be entered into by a person who can make a promise or make an offer. If he cannot make an offer or in his favour an offer cannot be made, the contract would be void as an agreement which is not enforceable in law would be void. Section 11 of the Indian Contract Act provides that the person who is competent to contract must be of the age of majority. If Ritesh Agarwal and Deepak Agarwal were minors, as would appear from their birth certificates, they could not have entered into the contract."
11. In fact, in that case, minor was party to the contract and therefore https://www.mhc.tn.gov.in/judis 6/8 Crl.O.P.No.6290 of 2022 the same will not be applicable to the present case, whereas, in this case the minors are only beneficiaries and not parties to the deed.
12. Such view of the matter, continuing the prosecution is nothing but an abuse of process of law as against the petitioners herein and accordingly this petition is allowed and the proceedings in C.C.No.9617 of 2021 pending on the file of the learned CCB & CBCID Metropolitan Magistrate, Egmore, Chennai is quashed as against these petitioners herein and the trial Court shall proceed with the case as against the other accused. It is made clear that the observations made in this petition is confined only to the petitioners herein. Consequently, the connected miscellaneous petitions are closed.
17.08.2022 kk https://www.mhc.tn.gov.in/judis 7/8 Crl.O.P.No.6290 of 2022 N.SATHISH KUMAR, J.
kk Crl.O.P.No.6290 of 2022 and Crl.M.P.No.3525 & 3526 of 2022 17.08.2022 https://www.mhc.tn.gov.in/judis 8/8