Madras High Court
P.Gowshika Boopathy … vs The State on 12 December, 2024
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
Crl.OP.No.16929 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 21.11.2024
PRONOUNCED ON : 12.12.2024
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
AND
THE HONOURABLE MR. JUSTICE M.JOTHIRAMAN
Crl.OP.No.16929 of 2017
in Crl.MP.Nos.10409 of 2017 & 3275 of 2023
P.Gowshika Boopathy … Petitioner/A1
Versus
1. The State
Rep by Inspector of Police
Central Crime Branch (Team II)
Egmore, Chennai. … 1st respondent/complainant
2.T.Muthu … 2nd respondent / defacto complainant
Prayer:- Criminal Original Petition filed under Section 482 of Cr.P.C., to
call for the records relating to the final report filed before Judicial
Magistrate, Tambaram at Poonamallee in CC.No.84/2019 on the file of
Judicial Magistrate, Tambaram at Poonamallee and quash the same. (Prayer
amended as per order made in Crl.MP.No.14215 of 2019 dated
06.03.2020).
(Subsequently, transferred and assigned as CC.No.212 of 2023 on the
1/31
https://www.mhc.tn.gov.in/judis
Crl.OP.No.16929 of 2017
file of Judicial Magistrate No.I, Ponnamallee)
For Petitioner : Mr.R.Shunmugasundaram, Sr.Counsel
for Mr.M.Udhaya Kumar
and Ms.Sona Sathishkumar
For Respondents : Mr.R.Muniyapparaj, APP for R1.
Mr.N.Jothi, Sr.Counsel
for Mr.Vinod for R2.
ORDER
[Order of the Court was made by M.JOTHIRAMAN., J] This petition has been filed seeking to call for the records pertaining to the CC.No.84 of 2019 on the file of the Judicial Magistrate, Tambaram at Poonamallee and quash the same.
2. Originally, this petition was listed before the single bench its vide order dated 10.08.2023, observed that “by order dated 30.06.2023, the learned Division Bench ordered to place this matter before the Hon'ble the Chief Justice. In view of the above, the Registry is directed to place the matter before the Hon'ble the Chief Justice.” 2(i). It is pertinent to mention that Crl.OP.No.14658 of 2023 has been 2/31 https://www.mhc.tn.gov.in/judis Crl.OP.No.16929 of 2017 filed to call for the records connected with CC.No.20 of 2016 on the file of the Principal Sessions Judge, Special Court for PMLA Cases, Chennai and quash the same.
2(iii). As ordered by the then Hon'ble Chief Justice, vide office note Order dated 17.10.2023, both the Crl.OP.Nos.16929 of 2017 and 14658 of 2023 were listed before the Division Bench dealing with Criminal matters. On 22.10.2024, the learned Counsel appearing on behalf of the petitioner in Crl.OP.No.14658 of 2023 has withdrawn the case, hence the same was dismissed as withdrawn and Crl.OP.No.16929 of 2017 was adjourned for further proceedings.
3. By consent of both parties we have taken up the present petition for adjudication.
The Gist of the prosecution case is as follows :-
4. The defacto complainant along with the petitioner/A1 and A2/Ravi have jointly purchased the immovable properties situated at Tiruvallur 3/31 https://www.mhc.tn.gov.in/judis Crl.OP.No.16929 of 2017 District, Ambattur Taluk, 39, Pammathikulam village, Old Patta No.1185 in
(i) S.Nos.550/1, 550/1A & 550/1B to an extent of 4.04 acres (ii)S.No.551/1 to an extent of 27.30 acres (iii)S.No.551/3 to an extent of 7.45 acres and
(iv)S.No.554/5 to an extent of 1.59 acres totally to an extent of 40 acres 38 cents from one Syed Abdul Ajiz and 3 others on 30.04.1999, under the Registered sale deed vide Doc.Nos.941/2000, 942/2000 and 943/2000. On 18.05.2005, the defacto complainant had executed a General Power of Attorney deed in favour of the petitioner/A1 for the purpose of obtaining subsidy loan from Central Government to build a warehouse, for storage of agricultural products. By misusing the said Power of Attorney deed, petitioner/A1 had executed sale deeds in favour of his wife/Amutha, daughters/Kanimozhi and Ezhilmozhi, his brother's son Dinesh Kumar, his relatives and also to other persons, to an extent of 12 acres 89 cents of land from the undivided share. When the defacto complainant questioned the same, at that point of time petitioner/A1 was associated with former Minister Veerapandi Arumugam and threatened the defacto complainant. At that time, A2/Ravi was also present along with petitioner/A1. Thereafter, the defacto complainant had cancelled the general power of attorney deed on 4/31 https://www.mhc.tn.gov.in/judis Crl.OP.No.16929 of 2017 31.08.2006. Even after cancelling the power of attorney deed, subsequently, on 09.10.2006 and 01.11.2006, the petitioner/A1 had sold out the remaining part of lands to an extent of 12 acres 10 cents, without informing to the defacto complainant. When the defacto complainant questioned the same, petitioner/A1 threatened him and said that he will kill him. Hence the defacto complainant lodged a complaint to recover the lands to an extent of 10acres and to take action. The Chennai, Central Crime Branch police had registered the case in Cr.No.225 of 2011 under Section 465, 468 r/w.471 & 420 IPC.
5. After completion of investigation, the 1st respondent/complainant has laid down the final report before the concerned Court. In the final report wherein states hereunder : -
5 (i). In the month of May 2005, the petitioner/A1 and A2/Ravi had conspired together to grab the shares of the defacto complainant. In order to execute their conspiracy they made a false promise to the defacto complainant saying that in order to build a warehouse for storing 5/31 https://www.mhc.tn.gov.in/judis Crl.OP.No.16929 of 2017 agricultural products and for obtaining subsidy from the Central Government, a power of attorney is required. By believing their words, the defacto complainant had executed a General Power of Attorney dated 18.05.2005 in Doc.No.867 of 2005 before the Sub Registrar, Redhills in favour of the petitioner/A1. Therefore, the petitioner/A1 and A2 are liable to be punished for the offence under Section 120(B) IPC.
5 (ii). Based on the said power of attorney, the petitioner/A1 had executed a sale deeds dated 26.06.2006 in Doc.No.4874 of 2006 in favour of one Rachana Rallan and Doc.No.4875 of 2006 executed in favour of Rajesh N.Dev. On 18.08.2006 executed sale deed in Doc.No.8791 of 2006 in favour of Reena Suresh, for totalling sale consideration of Rs.1,31,74,999/- and the petitioner/A1 and A2/Ravi have cheated the defacto complainant's share amount. Further, the petitioner/A1 had executed sale deeds in Doc.No.6961/2006 and 6962/2006 dated 28.08.2006 in favour of his wife/Amutha, on the same day, executed the sale deed in favour of his relative/Dinesh Kumar in Doc.No.6963/2006 and also executed Doc.Nos.6964 and 6965 of 2006 in favour of his daughters/Kanimozhi and 6/31 https://www.mhc.tn.gov.in/judis Crl.OP.No.16929 of 2017 Ezhilmozhi respectively on 28.08.2006. A1/petitioner executed the sale deed including the shares of the defacto complainant and A2 was accomplice with the act of A1. Therefore, A1 and A2 are liable to be punished for the offence under Section 406 IPC.
5 (iii). When the defacto complainant knowing the fact that he was cheated by the petitioner/A1 and A2/Ravi, without paying his share amount he had cancelled the General Power of Attorney, on 31.08.2006 vide Doc.No.2722 of 2006. Thereafter, the defacto complainant along with the witnesses directly have informed the petitioner/A1 about the cancellation of the said Power of attorney and demanded the share amount from petitioner/A1 and Ravi/A2. But they had threatened the defacto complainant and the witnesses No.2 to 4. Therefore, the petitioner/A1 and Ravi/A2 are liable to the punished for the offences under Section 506(i) IPC.
5(iv). Upon knowing the fact that the general power of attorney has been revoked, on 01.11.2006, the petitioner/A1 had executed four sale deeds vide Doc.No.9537 of 2006 in favour of one Tmt.Anna Ratinammal, 7/31 https://www.mhc.tn.gov.in/judis Crl.OP.No.16929 of 2017 Doc.No.9538 of 2006 in favour of Tmt.Natesan Thenmozhi, Doc.No.9539 of 2006 in favour of Tmt.Revathi and Doc.No.9540 of 2006 in favour of Tmt.Thiripurasundari and Doc.No.9541 of 2006 in favour of Thiru.Mohammed Miyakhan on 01.11.2006. Further, on 14.07.2011, the petitioner/A1 executed sale deed in favour of Tmt.Brinda Chezhian vide Doc.No.11578/2011. The petitioner/A1 had executed the above sale deeds to an total extent of 12 acres 89 cents for a sum of Rs.43,46,999/- and caused loss to the defacto complainant. Hence, A1/petitioner and A2/Ravi are liable to be punished for the offences under Section 420 and 468 IPC.
5(v). Therefore, the accused are liable to be punished for the offences under Section 120(B), 406, 420 and 506(i) IPC.
6. The learned Senior Counsel Mr.R.Shunmugasundaram appearing on behalf of the petitioner/A1 submitted that :-
(i)the cause of action arose on 09.10.2006. However, the complaint was given on 30.07.2011, following which the FIR was filed on 23.12.2011.
The defacto complainant/2nd respondent chosen to file the complaint after a 8/31 https://www.mhc.tn.gov.in/judis Crl.OP.No.16929 of 2017 delay of 5 years.
(ii)The defacto complainant/2nd respondent cancelled the power of attorney on 31.08.2006 without issuing due notice to the petitioner/A1.
(iii)the disputed general power of attorney is one coupled with interest and the same is irrevocable, the power of attorney was acted upon by executing agreement of sale, receipt of major portion of consideration and the possession were handed over. In this context, the learned Senior Counsel has relied upon the judgment reported in (2005) 12 SCC 77 – State of Rajasthan and others v. Basant Nahata, wherein it was held that “execution of power of attorney in terms of the provisions of the Contract Act also the power of attorney Act is valid. A power of attorney, we have noticed herein before is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in places of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or beach of trust is a manner between the donar and the donee.” 9/31 https://www.mhc.tn.gov.in/judis Crl.OP.No.16929 of 2017 The above said view was reiterated by the Hon'ble Apex Court in the judgment reported in (2012) 8 SCC 706 – Church of Christ Charitable Trust and Educational Charitable Society v. Ponniamman Educational Trust. Similar view as to irrevocable nature of power of Attorney coupled with interest was observed by the High Court Madras reported in 2022 SCC Onlime Mad 788 - P.Sunil v. Government of Tamil Nadu and in the case of Manu/TN/2960/2017 - M.Masilamani v. M.Veeramani.
(iv) The question as to validity and cancellation of power of attorney and alleged sale deed executed subsequently are essential in civil in nature and can be proved through evidence before the Civil Court.
(v) Beyond the period of limitation, the defacto complainant had also filed a civil suit in CS.No.443 of 2013 before this Court praying to declare that the alleged sale deeds executed in pursuance of power of attorney as invalid or in alternative to pay 1/3rd market value for the sold properties. In this context, the learned Senior Counsel has relied upon the judgments of the Hon'ble Supreme Court reported in (2022) 8 SCC 210 - Asset 10/31 https://www.mhc.tn.gov.in/judis Crl.OP.No.16929 of 2017 Reconstruction Company (India) Ltd v. S.P.Velayutham and others wherein it was held that “the suit for declaration of title or suit for declaration that a registered document is null and void, all the aforesaid three steps which comprise the entire process of execution of registration come under challenge. If a party questions the very execution of a document or the right and title of a person to execute a document and present it for registration, his remedy will only be to go to the Civil Court.” In another judgment of the Hon'ble Apex Court in (2007) 12 SCC 1 - Inder Mohan Goswami and another v. State of Uttaranchal and others. In yet another judgment of the Hon'ble Supreme Court reported in (2013) 11 SCC 673 – Paramjeet Batra v. State of Uttarakhand and others.
(vi) The property in dispute pertaining to 40 acres 38 cents was jointly purchased by the petitioner/A1, Ravi/A2 along with defacto complainant. The same was being enjoyed by all of them jointly without demarcation of share of each one of them by fixing the metes and bounds. The allegation of breach of trust cannot be sustained as there was no entrustment of any demarcated property to the petitioner/A1. In this context, the learned Senior 11/31 https://www.mhc.tn.gov.in/judis Crl.OP.No.16929 of 2017 Counsel has relied upon the judgment of the Hon'ble Apex Court reported in 1964 SCC Online SC 185 – Velji Raghavji Patel v. State of Maharastra it was held that “on behalf of the appellant it is contended that even if the prosecution had succeeded in showing that the four items referred to above were realised by the appellant and that he has not accounted for them properly he will not be liable for criminal breach of trust under Section 409 IPC but that his liability would be only of a civil nature.” The above judgment of the Hon'ble Supreme Court was followed in several cases and particularly by this Court in 2019 SCC Online Mad 29740 – V.Srinivasan and another V. State. In another judgment of this Court reported in 2023 SCC online Mad 2960 - Selvan v. Inspector of Police.
(vii) The allegations of cheating cannot be sustained as there is no materials to establish that the petitioner/A1 entertained the intention to cheat at the beginning stage while handing over the property.
(viii) The five sale deeds and one mortgage deed were executed subsequent to the cancellation of power of attorney, however the sale consideration in relation to the said sale deeds were received prior to the cancellation of power of attorney and only a major portion of the sale 12/31 https://www.mhc.tn.gov.in/judis Crl.OP.No.16929 of 2017 consideration was paid subsequent to the cancellation of power of attorney.
(ix) The execution of five sale deeds and one mortgage deeds were executed pertaining to the portion of the lands belonging to the petitioner/A1 and thereby the contents of the document cannot be challenged in accordance with Section 94 and 95 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA). Therefore, the FIR, charge sheet and the case in CC.No.212 of 2023 are liable to be quashed as the entire allegations do not make out any criminal offence.
7. Per contra, the learned Additional Public Prosecutor would submit that the investigating officer had conducted the investigation in a fair, free and impartial manner in accordance with law and filed charge sheet before the Special Court for Land Grabbing cases, Tiruvallur District. The trial Court after taking cognizance on the offence, assigned the case number in CC.No.66 of 2022. Thereafter, the case was transferred to the learned Judicial Magistrate No.I, Poonamallee and the case was assigned with new number as CC.No.212 of 2023 and the same is pending for adjudication. 13/31 https://www.mhc.tn.gov.in/judis Crl.OP.No.16929 of 2017
8. The learned Senior Counsel Mr.N.Jothi, appearing for the second respondent/defacto complainant submitted that -
(i) Initially the petitioner challenged the FIR dated 23.12.2011 registered in Cr.No.225 of 2011 for the offence under Section 465, 468, 471 and 420 IPC in Crl.OP.No.30031 of 2013 and the same was dismissed as withdrawn on 14.10.2014.
(ii) While filing the charge sheet further offences are added and the same has not been properly mentioned in the present petition. The petitioner/A1 misused the power of attorney by creating self serving sale deeds in favour of his wife, daughter and kith and kin through eight sale deeds.
(iii) The petitioner/A1 neither accounted to this defacto complainant/2nd respondent on the aforesaid transactions nor paid any amount to him.
(iv) The defacto complainant/2nd respondent cancelled the power of attorney by due registration of deed dated 31.08.2006 and informed the same to the petitioner/A1.
14/31 https://www.mhc.tn.gov.in/judis Crl.OP.No.16929 of 2017
(v) Even thereafter the petitioner/A1 went on selling the property and created sale deeds on his family members and others. Hence, the sale deeds were executed by the petitioner/A1 by adopting all gullible methods. The alleged purchasers are the A1/petitioner's relatives and mortgaged certain extent of property, years after the cancellation of the power of attorney and obtained huge loan in crores of Rupees.
(vi) The first respondent filed the final report on 21.12.2012 and cognizance was taken. The charge sheet contains 161 statement of 14 witnesses and 47 public documents including the questionable sale deeds are enclosed in the charge sheet. The trial Court issued summons to the petitioner/A1, immediately filed the present second quash petition without even filing the entire charge sheet and other relevant documents.
(vii) The civil suit filed by the defacto complainant is for recovery of money and for cancellation of unauthorised sale deeds executed by the petitioner/A1 to his kith and kin, the same cannot be a ground to maintain the present quash petition.
(viii) The Hon'ble Supreme Court recently held that once the charge sheet is filed, the question of quashing the charge sheet under Section 482 15/31 https://www.mhc.tn.gov.in/judis Crl.OP.No.16929 of 2017 Cr.PC will never arise at all. In this context, the learned Senior Counsel has relied upon the judgment of the Hon'ble Apex Court reported in (2021) 5 SCC 35 – Kaptan Singh V. State of Uttar Pradesh and others wherein it has been held in paragraph 9.1. as follows :-
“9.1. …...However, thereafter when the statements are recorded, evidence is collected and the charge-sheet is filed after conclusion of the investigation/inquiry the matter stands on different footing and the Court is required to consider the material/evidence collected during the investigation. Even at this stage also, as observed and held by this Court in catena of decisions, the High Court is not required to go into the merits of the allegations and/or enter into the merits of the case as if the High Court is exercising the appellate jurisdiction and/or conducting the trial. As held by this Court in the case of Dineshbhai Chandubhai Patel (Supra) in order to examine as to whether factual contents of FIR disclose any cognizable offence or not, the High Court cannot act 16/31 https://www.mhc.tn.gov.in/judis Crl.OP.No.16929 of 2017 like the Investigating agency nor can exercise the powers like an Appellate Court. …. ”
(ix) In another judgment reported in (2021) 8 SCC 583 – Saranya V. Bharathi and another wherein it has been held that “the principles that must keep in mind by the High Court while exercising the jurisdiction under Section 482 Cr.PC at the stage of framing of charges.” In yet another judgment reported in Amit Kapoor v. Ramesh Chander and another – (2012) 9 SCC 460 wherein it has been held that “this type of offences, the colour of civil nature would be always present. Yet, the criminal case filed cannot be quashed on this reason since the offences relate to cheating, forgery etc.,”
(x) The second respondent/defacto complainant supported the allegations made in the FIR, therefore, it would not be proper on the part of the petitioner/A1 to file the quash petition, to evaluate the merit of the allegations on the basis of the documents produced by him.
(xi) The principles enunciated in Bajanlal's case for quashment is not 17/31 https://www.mhc.tn.gov.in/judis Crl.OP.No.16929 of 2017 applicable to this case and in fact, the very attempt of the petitioner/A1 is contrary to several judgments, no fresh reason is stated so as to quash the charge sheet filed. Even after knowing the revocation of power of attorney, the petitioner/A1 executed the several sale deeds and also misappropriated sale proceeds apart from committing various crimes. It is not permissible under Section 482 Cr.PC to carryout meticulous analysis of the case, whereas the trial Court would find out whether the case would end in conviction or acquittal. In this context, the learned Senior Counsel has relied upon the judgment of the Hon'ble Supreme Court reported in (2002) 3 SCC 89 – State of Karnataka v. M.Devendrappa and another, and the judgment of the Hon'ble Supreme Court in (2019) 14 SCC 350 - Kamal Shivaji Pokarnekar v. State of Maharastra and others wherein it was held that criminal complaint 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.
9. We have considered the submissions made on either side and 18/31 https://www.mhc.tn.gov.in/judis Crl.OP.No.16929 of 2017 carefully perused the records available. In our considered opinion the following key issues require determination in the instant case (i) Whether the necessary ingredients of the offences punishable under Section 120(B), 420, 406, 468 and 506(i) IPC are prima facie made out? and (ii)Whether the dispute is one of entirely civil nature and therefore liable to be quashed.
10. At this juncture, it is relevant to cite the judgment of the Hon'ble Supreme Court reported in “1992 Supp (1) SCC 335 - State of Haryana v. Bhajan Lal, wherein it has been held with regard to exercise of inherent powers under Section 482CrPC, the Ho'ble Supreme Court has laid down the following categories of instances wherein inherent powers of the Court can be exercised in order to secure the ends of justice.
“102. … (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 FIR do not disclose a cognizable offence, justifying an 19/31 https://www.mhc.tn.gov.in/judis Crl.OP.No.16929 of 2017 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 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 Act concerned (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 Act 20/31 https://www.mhc.tn.gov.in/judis Crl.OP.No.16929 of 2017 concerned, 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.”
11. On perusal of records, reveals that the alleged cause of action arose from 18.05.2005 onwards, the complaint was given on 30.07.2011, following which FIR was registered on 23.12.2011 by the Central Crime Branch-II in Cr.No.225/2011 for the offences under Section 120B, 406, 420, 468 and 506(i) IPC against the petitioner/A1 and Ravi/A2. The defacto complainant/2nd respondent had chosen to file the complaint after the delay of five years from the date of cause of action. As per the charge sheet, the defacto complainant/2nd respondent, petitioner/A1 and Ravi/A2 had jointly purchased 40 acres 38 cents of land at Pamathukullam village. The defacto complainant/second respondent executed power of attorney in favour of the petitioner/A1 with regard to his 1/3 share of undivided share through registered Doc.No.867/2005 on 18.05.2005. The other joint owner Ravi/A2 21/31 https://www.mhc.tn.gov.in/judis Crl.OP.No.16929 of 2017 also executed power of attorney in favour of the petitioner/A1 on 18.05.2005 with regard to the his 1/3rd undivided share registered vide Doc.No.868 of 2005. The petitioner/A1 is also a co-owner.
12. It is also relevant to extract the Sections 120(A), 415, 420 and 468 IPC :-
“120A. Definition of criminal conspiracy.—When two or more persons agree to do, or cause to be done,— (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation.—It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely 22/31 https://www.mhc.tn.gov.in/judis Crl.OP.No.16929 of 2017 incidental to that object
415. Cheating.—Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.
420. Cheating and dishonestly inducing delivery of property.—Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable 23/31 https://www.mhc.tn.gov.in/judis Crl.OP.No.16929 of 2017 security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
468. Forgery for purpose of cheating. —Whoever commits forgery, intending that the [document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”
13. The defacto complainant/2nd respondent cancelled the power of attorney on 31.08.2006 vide registered Doc.No.2722 of 2006. There is no specific document available on record in connection with issuance of notice to the petitioner/A1 ignoring about the revocation of power of attorney. The disputed power of attorney is one coupled with interest and the said power of attorney was acted upon by executing the sale deeds. 24/31 https://www.mhc.tn.gov.in/judis Crl.OP.No.16929 of 2017
14. The defacto complainant in his complaint had stated that the Government had acquired the lands for forming four way road to an extent of 11 acres 75 cents on 30.10.2007 and awarded compensation amount of Rs.9,81,401/-. Out of which, the defacto complainant had received a sum of Rs.3,27,300/- from CMDA towards his 1/3rd share amount.
15. The defacto complainant/2nd respondent had filed civil suit in CS.No.443 of 2013 praying for recovery of property and to set aside the sale deeds executed by the petitioner/A1 to his close relatives, even after knowing the revocation of power of attorney (or) in alternative to pay 1/3rd of the market value for the sold properties. The question as to the validity of the cancellation of power of attorney and the alleged sale deeds executed subsequently are essentially of civil in nature and can be proved through evidence before the Civil Court. It is settled law that mere knowledge, even discussions of the plan would not perse constitute conspiracy. Therefore, the prima facie under section 120(B) was not made out.
16. The distinction between breach of contract and cheating is 25/31 https://www.mhc.tn.gov.in/judis Crl.OP.No.16929 of 2017 depends upon the intention of petitioner/A1 at the time of alleged inducement. Mere breach of contract cannot give raise to criminal prosecution under Section 420 IPC, unless fraudulent or dishonest intention is shown right at the beginning of transaction by him, when the offences were stated to have been committed.
17. It is settled law existing civil right to recover the share amount due does not debar one from instituting a criminal case for cheating, when intention to cheat is clear from the inception of transactions bolstered by subsequent conduct of the person is to be evaluated. The allegation of cheating stated by the complainant in his complaint, but the ingredients to contribution of cheating were not found.
18. The defacto complainant in his complaint has stated that in order to obtain subsidy from the Central Government for formation of ware house godown, on believing, the same he has executed the power of attorney deed. The above said recitals were not found in the cancellation of power of attorney deed executed by the defacto complainant in Doc.No.2722 of 2006 26/31 https://www.mhc.tn.gov.in/judis Crl.OP.No.16929 of 2017 dated 31.08.2006. Prima facie under Section 420 IPC was not made out, since one partner i.e, defacto complainant was authorised to sell the properties on behalf of him, no offence was pleaded in the complaint.
19. It is also relevant to extract the Sections 405 & 406 of IPC :-
“405. Criminal breach of trust. —Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits “criminal breach of trust”.
406. Punishment for criminal breach of trust.— Whoever commits criminal breach of trust shall be punished 27/31 https://www.mhc.tn.gov.in/judis Crl.OP.No.16929 of 2017 with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
20. The defacto complainant/2nd respondent, petitioner/A1 and Ravi/A2 were jointly purchased the property in the year 1999 and they were doing real estate business jointly. The defacto complainant had executed registered power of attorney deed, with respect to his 1/3rd share in the property in which the petitioner/A1 is also a co-owner. The alleged transaction were taken place during the year 2005-2006 and thereafter in the year 2007 jointly they have received the compensation amount given by the Government. The dishonest intention in the matter of misappropriation or conversion of the property, entrusted being the gist of offence of criminal breach of trust, a bonafide claim of right of the petitioner/A1 to the property entrusted, prima facie under Section 406 IPC cannot be constituted for criminal breach of trust.
21. A reading of the complaint itself would go to show that though the defacto complainant has revoked the power of attorney executed in favour of 28/31 https://www.mhc.tn.gov.in/judis Crl.OP.No.16929 of 2017 the petitioner/A1 on on 31.08.2006, the same was not communicated in writing to the petitioner at any point of time, till lodging the complaint on 30.07.2011. Even as per the complaint, the defacto complainant had knowledge about the sale deeds executed by the petitioner/A1, as early as in the year 2006 and there is no prima facie, acceptable reasons stated in the complaint as to why the complaint has been lodged after a period of five years. The averments of the complaint and the averments made in the charge sheet prima facie would go to show that essentially of a civil nature. The statements and documents stated to have been collected in respect of the complaint prima facie do not disclose commission of any alleged offences and make out a case against the petitioner/A1.
22. Applying the ratio laid down in Bhajan lal case (cited supra) to the instant factual matrix, in our opinion falls within the ambit of first, third and fifth category of the case, therefore interference of this Court is warranted.
25. In the result, this Criminal Original Petition is allowed. The 29/31 https://www.mhc.tn.gov.in/judis Crl.OP.No.16929 of 2017 impugned FIR in Cr.No.225 of 2011 dated 23.12.2011 and proceedings in CC.No.212 of 2023 on the file of the Judicial Magistrate No.I, Poonamallee, in pursuance of charge sheet dated 29.11.2012 against the petitioner/A1 for the offences under Sections 120(B), 420, 406, 468 and 506(i) stands quashed in respect of petitioner/A1. Consequently, connected miscellaneous petitions are closed.
[S.M.S., J.] [M.J.R., J.]
12.12.2024
tsh
Index : Yes/No
Internet : Yes/No
To
1. The State
Rep by Inspector of Police
Central Crime Branch (Team II)
Egmore, Chennai.
2.The Public Prosecutor
High Court, Madras.
30/31
https://www.mhc.tn.gov.in/judis
Crl.OP.No.16929 of 2017
S.M.SUBRAMANIAM, J.
AND
M.JOTHIRAMAN, J.
tsh
Pre Delivery Order in
Crl.OP.No.16929 of 2017
12.12.2024
31/31
https://www.mhc.tn.gov.in/judis