E.K.Palanisamy vs State Rep. By on 18 March, 2014

[Cites 22, Cited by 0]

Madras High Court

E.K.Palanisamy vs State Rep. By on 18 March, 2014

2.The main criminal revision is filed by the accused against the summons order issued to him in CC.No.133 of 2013 for the offence under Section 82(c) of the Registration Act. The case is registered against the petitioner on the basis of the complaint lodged by the Sub Registrar-II, Erode as per the direction of the District Registrar, Erode.

3.The brief facts, which are relevant for consideration herein are as follows:

The petitioner obtained patta in respect of the land in question and later on sold the same to different parties. 13 persons claiming to be the legal heirs of the original owner, approached the District Collector to cancel the patta granted in favour of the petitioner. The District Collector cancelled the patta and directed the Tahsildar to hold a fresh enquiry. One of the claimants by name Gunasekaran lodged the police complaint in Cr.No.1776/99 against the petitioner for the offences under sections 420, 465, 466, 467, 471 and 120(B)IPC. In the mean while, the order of the District collector cancelling the patta was set aside by the Land Commissioner, who inturn restored patta granted in favour of the petitioner. Thereafter, the claimant, who lodged the police complaint sold the land in question to one P.C.Krishnan. While so, the the Deputy Superintendent of Police closed the case in Crime No.1776/99 as mistake of fact vide RCS.No.12/2005. Whereas the subsequent incumbent Deputy Superintendent of Police reopened the investigation in Crime No.1776/99 and filed the second final report and the same was taken up on file as CC.No.592/2007 by the Judicial Magistrate No.II, Erode. The petitioner was by order dated 20.4.2012 acquitted insofar as the offence under section 419 IPC is concerned and convicted for other offences. The order of conviction was challenged by way of appeal in CA.No.90/2012 before the District Principal Sessions Judge, who acquitted the petitioner from all the charges. Challenging the order of acquittal of the petitioner, the Government preferred an appeal before this Court and the same is yet to be admitted.

4.Whereas, the defacto complainant by name Gunasekaran moved Crl.RC.No.1283 of 2012 against the order of acquittal of the petitioner, but he withdrew the same. In the mean while, the District Registrar, Erode at the instance of P.C.Krishnan, by order dated 18.5.2012 cancelled 9 sale deeds executed by the petitioner. Aggrieved by the same, the petitioner filed appeal before the Inspector General of Registration, Chennai against the proceedings of the District Registrar, Erode. Pending the same, the District Registrar, Erode directed the Sub Registrar-II, Erode to lodge the complaint against the petitioner for the offence under Section 82(c)of Registration Act. On the basis of such complaint, the case was registered in Crime No.749/2012 for the offence under section 82(c) of the Act. The FIR was investigated into and the final report was filed and was taken up on file as CC.No.133/2013 on the file of the Judicial Magistrate No.II, Erode, who issued summons to the petitioner. Aggrieved against the same, the present revision came to be filed before this Court.

5.The summons issued against the petitioner is challenged on the following grounds: (i)The averments and allegations raised in the final report under Section 173(2) Cr.P.C did not constitute the offence alleged under section 82(c) of the Registration Act, as such, the order of taking cognizance is bad in law; and (ii) the Judicial Magistrate No.II, Erode has erred in summoning the petitioner for second trial for the same sets of facts without due application of mind.

6.During the pendency of this criminal revision, one P.C.Krishnan whose complaint is the basis for initiating enquiry by the District Registrar, Erode resulting in cancellation of sale deed, has come forward with MP.No.3/2013 to implead him and permit him to make his submissions in this criminal revision.

7.Before going into the relief sought for in this criminal revision, the first aspect to be considered herein is the issue relating to the impleadment of one P.C.Krishnan who was the complainant before the District Registrar, Erode who is the petitioner in MP.3/2013. The proposed party sought to implead himself as one of the respondents in this criminal revision. The proposed party has raised serious objections against the main relief sought for in this revision, by raising allegations against the revision petitioner. It is his case that as the District Registrar held the enquiry and cancelled the sale deed at his instance and as further action taken by the District Registrar in directing the Sub Registrar to lodge the complaint is only a consequent action, he is but necessary party in this revision. The learned counsel for the proposed party has also cited the authority of the Hon'ble Supreme Court reported in 2001 Crl.LJ 1264 (M/s.J.K.International v. State, Govt. of NCT of Delhi and others) for the legal proposition that the complainant has the right to be heard in the quash petition filed in respect of the complaint initiated at his bequest and the same does not get wiped out merely because case is charge sheeted by police or that court has taken cognizance of offence.

8.It is true that the Hon'ble Supreme Court has in the judgment cited above held that the person, who is aggrieved by the offence committed, is not altogether wiped out from the scenario of the trial merely because the investigation was taken over by the police and charge sheet was laid by them. Even the fact that the court had taken cognizance of the offence is not sufficient to debar him from reaching the court for ventilating his grievance. Though this court is bound by the ratio laid down by the Hon'ble Apex Court, the same is not applicable to the facts of the present case for the following reasons.

9.As far as the criminal case arising out of the present criminal revision is concerned, the same is not the culmination of the complaint given by the proposed party. As far as the proposed party is concerned, he has not chosen to lodge the police complaint and his complaint to the District Registrar was already enquired into and resulted in cancellation of sale deeds executed by the revision petitioner. The proposed party has been examined as PW7 in the criminal case in CC.592/2007 arising out of the complaint given by one Gunasekaran and the same ended in an order of acquittal of the revision petitioner and another from all the charges at the appellate stage. The private complaint lodged by the other defacto complainant was also withdrawn by him and the appeal filed by the state is yet to be numbered and is not taken up on file, as such, the proposed party was given the venue for ventilating his grievance in CC.592/2007 and before the District Registrar and the revision petitioner has the right of hearing only in the appeal pending on the file of the Inspector General of Registration against the order of cancellation of sale deeds issued by the District Registrar.

10.The learned senior counsel for the revision petitioner has also cited the following authorities in support of his contention that the parties, who are neither the complainant nor the defacto complainant and who are in the nature of private parties, have no locus standi to play any role in a case instituted by the State: (i)AIR 1966 SC 911 (Thakur Ram v. State of Bihar) (SC) (ii)2006 (6) SCC 613 (Rajiv Ranjan Singh Lalan v. Union of India) (iii)1997 Crl.LJ 3117 (Delhi) (Shri P.V.Narashimha Rao v. State) (iv)1998 Crl.LJ 2629 (Madras) (All India Democratic Women's Association v. State and others) (v) 2009-2-LW (Crl) 1449 (S.Jayapal v. I.Periyasamy and another) (Madras) (vi)2009(2) MWN (Cr) 95 (J.M.Arumugam v. State) and (vii) 2010 (3) CTC 73 (P.Ravindran v. State) (Madras). In all these cases, the Hon'ble Apex Court and our High court and other High Court have negatived the attempt made by the third party either to intervene or oppose the petition for discharge or acquittal in the case registered on the basis of the police report.

11.It is also noteworthy to mention at this juncture that the petitioner in MP.3/2013 has earlier filed Crl.O.P.No.13367/2012 seeking police protection and the same was dismissed by order dated 16.7.2012. While doing so, the learned brother Judge referred to the dismissal of the civil suit in O.S.123/2008 on the file of Sub Court, Erode filed by the impleading petitioner herein for declaration of title and for injunction and also observed therein that the disputed question of title cannot be gone into and it is for the civil court to decide the question of title over the property, which has been already sold away long before by the impleading petitioner herein and after purchase from the impleading petitioners, some of the purchasers had constructed buildings on the properties right from the year 2000 after getting necessary permission and electricity service connection as well as they are in possession of the property and it is for the petitioner to work the remedy before the civil court and the petition filed for police protection is clear abuse of process of court. Thus, the right of the impleading petitioner to resort to the criminal procedure code in connection with the criminal complaint given against the petitioner herein is totally thwarted by other court.

12.Insofar as the present criminal revision is concerned, the prosecution is as per section 83 of the Registration Act, to be commenced by or with the permission of the Inspector General, the Registrar or the Sub Registrar in whose territories, District or Sub District, as the case may be, the offence has been committed. The offence alleged herein is the act of making false statement, delivering false copies, falsely personates another and abetment. In short, fraud is played on the registering document in getting the document registered. That being so, the proposed party is not necessary party in this criminal revision and MP.No.3/2013 is hence dismissed.

13.As far as the relief sought for in this criminal revision is concerned, the revision petitioner seeks to quash the proceedings in CC.No.133/2013 mainly on the ground that the earlier criminal case on the basis of the same set of facts and same cause of action having been duly tried and having disposed of in favour of the petitioner by acquitting him as per law, the second prosecution for the very same allegations is in violation of the right guaranteed under Article 20(2) of the Constitution of India. As no person shall be prosecuted and punished more than once, the second prosecution amounts to double jeopardy and the petitioner is entitled to immunity by way of Section 300 Cr.P.C.

14.As far as the ground above mentioned on which the impugned order sought to be quashed is concerned, this court at the risk of repetition states that one Gunasekaran lodged a complaint in Crime No.1776/1999 on the same set of allegations. The same was initially closed as mistake of fact vide RCS No.12/2005. Thereafter, the case was re-opened and final report was filed and the same was taken up on file in CC.No.592 of 2007 for the offences under sections 419, 420, 467, 468, 471 r/w 109 IPC as if the first accused by name E.K.Palanisamy, who is the revision petitioner, created forged will and power of attorney in respect of 85 cents belonging to one Vinayathammal and produced the same before the Sub Registrar officer, Karungalpalayam as the same is genuine document and get it registered by impersonating Vinayathammal and transferred patta in his name on the strength of the same and sold the same to third party etc. The case was after due contest, ended in an order of acquittal of the revision petitioner for the offence under section 419 IPC and convicted for other offences. The order of conviction for other offences was subsequently set aside in CA.No.90/2012. As a result, the petitioner was acquitted from all the charges as referred to above. As of now, there is no further revision or appeal pending against the order of acquittal of the revision petitioner.

15.In CC.No.592/2007, the defacto complainant Gunasekaran was examined as PW1 and One P.C.Krishnan, who is complainant before the District Registrar was examined as PW7. The lower appellate court has, after detailed discussion observed in its judgment that the originals of two documents, which are allegedly forged, were not produced before the court and the registers having thump impression of the executant were relating to Vinaitheerthammal and not Vinayathammal and thump impressions sent for expert evidence to establish the case of forgery were not the thump impressions of the original will and power of attorney and failure on the part of the prosecution in not producing the thump impression register and the original will and power of attorney stood unexplained and no credence could be given to the expert opinion and the complainant and others ought to have resorted to civil suit for establishing their title over the property and get back the same and the criminal case was filed without any basis and no ingredients to prove the offence of forgery was made out and only when the act of forgery is established, the prosecution can press into service for the offences under sections 467 and 468 etc. and no offence under sections 467, 468 and 420 IPC is made out against the petitioner. Whereas, the present complaint is filed for the same offences i.e., the act of impersonation and act of forgery and cheating etc. for which the petitioner was acquitted in the earlier case. If that is so, this court has no hesitation to accept the arguments advanced on the side of the petitioner that the present case is one for second prosecution for the same offences, which already decided in favour of the petitioner and the same amounts to double jeopardy and in violation of Article 20(2) of the constitution of India.

16.The learned senior counsel for the petitioner would also argue that the present proceedings is hit by section 300 Cr.P.C, as per which, a person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence, shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence nor on the same facts for any other offence for which a different charge from the one made against him might have been made. Further, the attention of this court is also drawn to the fact that neither in the present case nor in the earlier case, the person who allegedly impersonated the elderly lady Vinayathammal, is either apprehended or joined as co-accused, as such, the petitioner cannot be at any stretch of imagination tried for the same offence for the act of impersonation of Vinayathammal. The act of forgery of the document in the absence of the original documents made available before the court concerned, cannot be effectively decided.

17.Viewing from any angle, the second prosecution initiated against the petitioner amounting to abuse of process of law, is both legally and factually not permissible and the summons issued based on the same is also bad in law and is hence liable to be set aside.

18.In the result, this criminal revision is allowed by setting aside the charge sheet and summons issued against the petitioner in CC.No.133/2013. M.P.No.3 of 2013 is dismissed. Other miscellaneous petitions are closed.

rk				18.03.2014
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K.B.K.VASUKI, J.

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	Crl.R.C.No.757 of 2013





















18.3.2014

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