Madras High Court
Antony Gomes vs The State Represented By on 29 June, 2015
Author: B. Rajendran
Bench: B. Rajendran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 19.06.2015
PRONOUNCED ON : 29-06-2015
Coram :
THE HONOURABLE MR. JUSTICE B. RAJENDRAN
Criminal Revision Case No. 56 of 2015
Antony Gomes .. Petitioner
Versus
1. The State represented by
The Inspector of Police
Anti Land Grabbing Special Wing
District Crime Branch
Kancheepuram District
2. M/s. Hallmark Infrastructure Private Limited
represented by its Managing Director
Mr. Anand Jain
No.43, United Plaza, Usman Road
T. Nagar, Chennai - 600 017
3. S. Mohan
4. Lalit Kumar Bhandari
5. E. Govindaraj
6. A. Gopal .. Respondents
Criminal Revision Case filed under Section 397 and 401 of Criminal Procedure Code to set aside the Order dated 28.12.2014 passed in Crl.M.P. No. 4138 of 2014 in Crime No.41 of 2013 on the file of the Judicial Magistrate No.II, Chengalpattu.
For Petitioner : Mr. N.R. Elango, Senior Advocate
for Mr. R. Vivekananthan
For Respondents : Mr. V. Arul
Government Advocate (Crl.side) for R1
Mr. K. Sridhar for R2
Mr. Ar.L. Sundaresan, Senior Advocate
for Mr. K.S. Arumugam for RR3 & 4
Mr. C. Arivazhagan for RR5 and 6
ORDER
The petitioner, who is the defaccto complainant in Crime No. 41 of 2013 on the file of the respondent/police, has come forward with this Criminal Revision Case aggrieved by the order dated 29.12.2014 passed by the Court below in Crl.M.P. No. 4138 of 2014 in Crime No. 41 of 2013 dismissing his protest petition as against the final report filed by the investigation officer in this case.
2. According to the revision petitioner, the land measuring an extent of 2 acres comprised in S.F. No.58/11A/2A1A1 corresponding to S.F. No.58/11A/2A1 in No.92, Eachankaranai Village, Chengalpat Taluk, Kancheepuram District was originally owned by one Rajagopal Naidu. After his death, his two sons R. Babu Naidu and R. Govindaraj sold the land to and in favour of A. Gopal, Son of Arasan by a registered sale deed dated 30.10.1984 vide document No. 2347 of 1984. After such purchase, Mr. A. Gopal, Son of Arasan had mutated the revenue records and obtained patta No.41 in his name on 25.02.1986. Subsequently, on 02.02.1999, Mr. A. Gopal, son of Arasan died and his legal heirs continued to be in possession and enjoyment of the land. On 11.12.2008, the legal heirs of A. Gopal, son of Arasan have sold the land in question in favour of M/s. Hallmark Infrastructure Private Limited. Subsequently, M/s. Hallmark Infrastructure Private Limited sold the land to and in favour of the petitioner by means of a sale deed dated 30.04.2013 and the petitioner became the owner of the land in question. On such ownership, the petitioner applied for mutation of the revenue records in respect of the land purchased by him in S.F. No.58/11A2A1A1. At that time, the petitioner came to know that a general power of attorney deed dated 31.01.2008 has been created in respect of the land owned by him by one A. Gopal, son of Appu, purportedly by impersonation. By the said power of attorney deed dated 31.01.2008, the above said Mr. A. Gopal, son of Appu impersonating himself as A. Gopal, Son of Arasan had authorised Mr. Lalith Kumar Bandari as his power agent to deal with the above said lands. On the strength of the power of attorney, Mr. Lalith Kumar Bandari had executed two sale deeds dated 04.02.2008 registered as document Nos. 892 and 893 of 2008 in respect of the lands measuring an extent of 1.27 acres and 21 cents respectively. On coming to know about the fraudulent transaction, the petitioner has given a complaint to the respondent/police based on which a case in Crime No. 41 of 2013 came to be registered for the offences punishable under Sections 120 (B), 419, 465, 468 and 471 of IPC against Mr. Gopal, son of Appu and Mr. S. Mohan, Managing Director of M/s. Wisdom Housing and Properties Private Limited. In the complaint given by the petitioner, it was specifically stated that the persons who are mentioned in the complaint have conspired and colluded together with an intention to grab his land. It was further stated that in furtherance of such conspiracy, they have indulged in creating forged and fabricated documents by impersonation. According to the petitioner, the said Gopal, son of Arasan died long back however, the power of attorney has been executed by the accused person by impersonation as if it was executed by Gopal, son of Arasan, while the fact remains that he is Gopal, son of Appu. As mentioned above, the original owner A. Gopal, son of Arasan died long back. The executant of the power of attorney deed knowing fully wel that he is neither the owner of the land nor he is the real person i.e., Gopal, son of Arasan had executed the power of attorney thereby they have connived to cheat the defacto complainant.
3. Upon registration of the case, the fifth and sixth respondents herein, who are arrayed as A-1 and A-4 in Crime No. 41 of 2013 respectively, have filed Crl.OP Nos. 14228 and 14229 of 2013 before this Court praying for grant of bail. This Court, by an order dated 25.06.2013 granted bail to them subject to certain conditions. While granting bail, this Court also recorded the statement of the counsel for the petitioner therein that the first Accused Gopal is repenting to the effect that he has impersonated wrongly in giving his father's name for creating the documents.
4. The investigation officer in this case, after conducting an enquiry filed a closure report dated 19.02.2014 before the learned Judicial Magistrate No.II, Chengalpat closing the complaint given by the petitioner as mistake of fact. The learned Judicial Magistrate, by an order dated 19.02.2014, accepted the closure report filed by the investigation officer. Aggrieved by the same, the petitioner has filed Crl.R.C. No. 860 of 2014 before this Court and this Court, by an order dated 28.08.2014 setting aside the order passed by the learned Judicial Magistrate No.II, Chengalpat with a direction to the defacto complainant to file a protest petition before the learned Judicial Magistrate within one month and if any such petition is filed, the learned Judicial Magistrate was directed to consider it and pass orders upon the merits of the case.
5. As per the directions of this Court, the petitioner has filed a protest petition. The protest petition filed by the petitioner was dismissed by the impugned order dated 28.12.2014 passed in Crl.M.P. No. 4138 of 2014 in Crime No.41 of 2013 on the file of the Judicial Magistrate No.II, Chengalpattu. According to the petitioner, the various contentions raised in the protest petition were not properly considered by the learned Judicial Magistrate No.II, Chengalpat. Therefore, the petitioner has come up before this Court with this Criminal Revision Case.
6. Mr. N.R. Elango, learned Senior Counsel appearing for the petitioner would contend that earlier, when the investigation officer has closed the complaint given by the petitioner as mistake of fact, the petitioner has filed Crl.R.C. No. 680 of 2014 and this Court directed the petitioner to file a protest petition. In the order dated 28.08.2014 passed by this Court in Crl.R.C. No. 680 of 2014, it was made clear that the order passed by the learned Judicial Magistrate No.II, Chengalpet is not a reasoned order and the said Court ought not to have accepted the final report filed by the investigation officer without adducing any reasons. In other words, the order passed by the learned Judicial Magistrate No.II, Chengalpet accepting the closure report of the investigation officer is a cryptic order without any reasons for accepting the final report of the investigation officer. Further, in the order which is impugned in this Criminal Revision Case, the learned learned Judicial Magistrate No.II, Chengalpet has narrated the factual scenario and eventually, without adducing any reasons, dismissed the protest petition filed by the petitioner. Such an order passed by the court below is without any reasons and without application of mind to the various contentions urged on behalf of the petitioner. Above all, the investigation officer in the final report has stated that there was no impersonation as alleged in the complaint. It was further stated that one Gopal, son of Appu has signed as a confirming party. It was further pointedout that there is no material evidence to show that Gopal, Son of Appu had acted and/or impersonated as Gopal, Son of Arasan. The fact remains that the power of attorney deed was actually executed by A. Gopal, Son of Appu by impersonation inasmuch as A. Gopal, son of Arasan died long back in the year 1999. Further, it is mainly pointed out by the learned Senior counsel for the petitioner that in the final report filed by the investigation officer, the confession statement given by one of the accused before this Court has been overlooked. Such admission made by one of the accused has been clearly recorded by this Court in the order dated 25.06.2013 in Crl.OP Nos. 14928 and 14929 of 2013. In the order dated 25.06.2013, this Court had recorded the affidavit filed by one of the accused stating that "learned counsel for the petitioner submits that the petitiner repents for the mistake and has also filed an affidavit before this Court stating that 'I have committed an offence of impersonation by putting my father's name as Arasan instead of Appu." Inspite of these material evidence, the Court below has failed to direct the investigation officer to conduct proper enquiry.
7. The learned senior counsel for the petitioner further pointed out that the Revenue Divisional Officer, in his report dated 10.08.2013 has stated that the Patta No.41 in respect of the land in Survey No.58/11A2A1A1 measuring an extent of 1.48 cents stands in the name of Gopal, son of Arasan. The revenue records does not disclose the name of Chinna Paiyan or Chidambaram or Gopal, Son of Appu. It was further stated that the 'A' Register, Chitta and Adangal extract maintained by the revenue department discloses that it stands in the name of Mr. A. Gopal, Son of Arasan. Inspite of all the above evidences, it was merely stated in the final report that the dispute is civil in nature and the parties have to work out their grievance before a Civil Forum. It was also concluded in the final report that there is no material evidence made available to conclude that the accused have colluded and conspired together with an ill intention. Further it is concluded in the final report that there is no material made available to show that the accused have indulged in impersonation. It is further pointed out by the learned Senior Counsel for the petitioner that earlier, in the sale deed dated 28.11.1973 relied on by the accused, the extent of land covered is 1.27 cents only. Since the revenue authority has granted patta in the name of deceased Gopal, son of Arasan in an extent of 1.48 cents, they have put Survey No.58/11 in subsequent document No. 3820 dated 28.11.1973 to tally the extent of land. In other words, the accused, in furtherance of their collusion, have created a document vide document No.2526/IV/05 dated 21.11.2005 for a land measuring 21 cents. Even after creation of the aforesaid documents, the accused could not get the patta transferrred in their name and therefore, they have indulged in impersonation and created a bogus power of attorney deed dated 31.01.2008. The General Power of attorney deed was executed by Gopal, Son of Appu impersonating himself as Late. Gopal, son of the Arasan. However, in the final report, nothing was disclosed about impersonation. The proof of ownership is different, but proof of impersonation is important to be established in a criminal case. The petitioner is able to make out a case that Gopal, son of Appu has impersonated himself as Gopal, son of Arasan which was not at all dealt with by the investigation officer.
8. The learned Government Advocate appearing for the first respondent police supported the order passed by the court below, inter alia, the manner in which the investigation was conducted by respondent police. According tothe learned Government Advocate, a fair and thorough enquiry has been conducted by the investigation officer, who, during the course of investigation had collected documentary evidence from the Revenue Divisional Officer and other revenue officials. On consideration of the material evidences collected, the investigation officer concluded that the dispute is civil in nature and the parties have to work out their remedy before a Civil Forum. Such a conclusion arrived at by the investigation officer is based on material evidence and it was also accepted by the court below. In such circumstance, the learned Government Advocate prayed for dismissal of the Criminal Revision Case.
9. Mr. K. Sridhar, learned counsel appearing for the second respondent pointed out that in the complaint given by the petitioner, there are material evidence made available to prove the offence of impersonation. According tothe learned counsel for the second respondent, Lalith Kumar Bandari had obtained power of attorney from the accused Gopal, son of Appu by impersonation. Conveniently, in the power of attorney deed, the accused says he is not the owner of the land in dispute but the patta has been issued in his name erroneously by the revenue authority. Therefore, allegedly, in order to give up his right, if any in the land in dispute, he has executed the power of attorney authorising Mr. Lalith Kumar Bhandari as his agent. There is no necessity to execute such a power of attorney by the accused. However, by making use of this power of attorney, Mr. Lalith Kumar Bhandari has sold the land in question to Wisdom Properties. The accused and impersonator has made use of the identity in the name of the original owner A. Gopal, Son of Arasan and indulged in impersonation. These aspects have not been properly dealt with by the court below and therefore, he prayed for allowing the Criminal Revision Case.
10. Mr. Ar.L. Sundaresan, learned senior counsel appearing for the respondents 3 and 4 would contend that there are two different lands involved in this case. The ownership of the property which was complained of and claimed by the petitioner are entirely different. Therefore, the question of impersonation does not arise in this case. As far as impersonation is concerned, it is not attracted in this case for the simple reson that the petitioner Gopal, Son of Appu appeared before the Registering Authority for registration of the power of attorney deed and as a proof of his identity produced ration card and other documents which clearly establishes his identity as Gopal, son of Appu. Therefore, there is no ill intention to impersonate himself as Gopal, son of Arasan. What was mentioned in the registered power of attorney can therefore be construed as a typeographical mistake. If the petitioner really wanted to indulge in impersonation, he could not have produced proof of identity to identity himself as Gopal, son of Appu. Further, he would not have affixed his photograph, rather, he would have affixed the so called Gopal, son of Arasan. Therefore, according to the learned Senior counsel for the respondents 3 and 4, there was no intention on the part of the petitioner to indulge in impersonation as complained of.
11. It is further contended by the learned senior counsel for the respondents 3 and 4 that there are two different lands covered in the general power of attorney deed are totally different. As per the complaint given by the petitioner herein attempt is being made to grab the land measuring 1.48 acres of land which is totally incorrect. The fact remains that the land in respect of which Hall Mark infrastructure Private Limited is claim right is 2.00 acres in Survey No.58/11A/2A1 covered by different boundaries and the land in respect of which M/s. Wisdom Housing Properties Pvt Ltd., claiming title is comprised in Survey No.58/11A2A1A1 measuring an extent of 1.48 acres having different boundaries.
12. As far as the order passed by the court below, the learned Senior counsel for the respondents 3 and 4 would contend that it was passed with due application of mind by appreciating the factual aspects. It is not necessary that the order passed by the court below must be lengthy and elaborate. The court below, on perusal of the final report filed by the investigation officer has accepted that there is no material evidence made available during the course of investigation. Above all, the court below had taken note of the fact that there are civil suits pending between the parties and the right and title of the land in dispute can only be considered by the competent civil Court after trial. Therefore, the court below held that when there are suits pending before the Civil Court with respect to a dispute in title, parallel Criminal proceedings at the instant of defacto complainant is not warranted. The court below therefore concluded that the parties to the lis have to abide by the outcome of the civil litigation and criminal investigation by the respondent police is unnecessary.
13. According to the learned Senior counsel for the respondents 3 and 4, the land measuring 1.48 acres of land in Survey No.58/11A2A1A1 is the absolute property of Wisdom Housing Properties Limited who have purchased it on 04.02.2008 by means of two registered sale deeds bearing Nos. 882 and 883 of 2008 registered on the file of Sub-Registrar, Chengalpet. Mr. Chinnapaiyan and Mr. Chidambaram have acquired title in respect of 1.27 acres out of 1.48 acres of land vide registered sale deed dated 25.05.1981 from Mr. Murugan and Durairaj. The remaining 21 cents of land and some other larger extent of land was purchased by Chidambaram and Chinnapaiyan even on 14.08.1981 itself. Subsequently, the said Murugan and Durairaj sold the property mesuring 1.27 acres of land to Mr. Chinnapaiyan and Chidambaram on 25.05.1981, have purchased the same from Mr. Manikkam and Mr. Thalayan Arasan by a sale deed dated 28.11.1973. The said Manickam and Thalayan Arasan are the joint Pattadhars in respect of the land measuring 22 and odd acres. Therefore, according to the learned Senior counsel for the respondents 3 and 4, a civil dispute is sought to be given a criminal colour by the defacto complainant. The complaint was given only to harass the respondents 3 and 4. The trial court had taken note of all the contentions urged on behalf of both sides and rightly accepted the report filed by the investigation officer. Such a conclusion arrived by the court below needs no interference by this Court and he prayed for dismissal of the Criminal Revision Case.
14. The learned Senior counsel for the respondents 3 and 4 brought to the notice of this Court that Wisdom Properties represented by the third respondent herein has filed WP No. 7973 of 2013 before this Court challenging the notice issued by the Revenue Divisional Officer, Chengalpet for conducting an enquiry. The said writ petition No. 7973 of 2013 was dismissed by this Court on 05.08.2013 on the ground that revenue authorities are not competent to go in to the dispute relating to title of the property and the parties were directed to work out their remedy in the Civil Suit. As against the order dated 05.08.2013 in WP No. 7973 of 2013, M/s. Hallmark Infrastructure Private Limited, second respondent herein has filed W.A. No. 2140 of 2013 before the Division Bench of this Court by contending that fraud has been played by Wisdom Properties to unlawfully enrich themselves. The Division Bench of this Court, by an order dated 07.02.2014 dismissed the writ appeal. As against the same, Wisdom Properrties has filed SLP No. 7829 of 2014 before the Honourable Supreme Court. The Supreme Court, by a brief order dated 14.08.2014 dismissed the Special Leave Petition leaving the contentions urged by the parties open to be adjudicated in the appropriate forum. Thereafter, M/s. Hallmark Infrastructure has also filed Crl.OP Nos. 1527 and 1267 of 2014 before this Court for transferring the investigation to some other investigation agency in respect of Crime No. 41 of 2013. The said Criminal Original Petitions were dismissed by this Court on 23.07.2014 giving liberty to the parties to work out their remedy in the Civil Suit. According to the learned Senior counsel for the parties, at every stage, the respondents 3 and 4 were harassed by the petitioner as well as Hallmark Infrastructure Private Limited to ensure that they did not succeed in the Civil Litigation by indirectly subjecting themselves into Criminal litigation. The present Criminal complaint at the instance of the defacto complainant is an attempt to somehow or the other harass the respondents 3 and 4..
15. I heard the learned counsel on either side and perused the material records placed. The entire case revolves on one aspect namely whether or not the complaint given by the defacto complainant as regards impersonation requirs to be probed further and whether the Court below, while deciding considering the protest petition filed by the defacto complainant failed to take into consideration the issue in question i.e., the impersonation done by Gopal, Son of Appu, impersonating himself as Gopal, son of Arasan, who died long back, to cheat the defacto complainant.
16. According to the petitioner, he purchased the land measuring an extent of 2 acres comprised in S.F. No.58/11A/2A1A1 corresponding to S.F. No.58/11A/2A1 in No.92, Eachankaranai Village, Chengalpat Taluk, Kancheepuram District from M/s. Hallmark Infrastructure Private Limited by means of a sale deed dated 30.04.2013 and the petitioner became the owner of the land in question. On such ownership, the petitioner applied for mutation of the revenue records in respect of the land purchased by him in S.F. No.58/11A2A1A1. In respect of this land, patta was granted in favour of his vendor's vendor namely A. Gopal, son of Arasan in patta No.41. Admittedly, the said A. Gopal, Son of Arasan died on 02.02.1999, However, the sixth respondent viz., A. Gopal, son of Appu has executed a general power of attorney deed dated 31.01.2008 by which he authorised the fourth respondent herein viz., Lalith Kumar Bhandari to deal with the land in dispute. The recitals in the powr of attorney needs to be dealt with. The recitals would indicate that the name of the sixth respondent was erroneously included in the patta and therefore, later on, if any transaction is made in respect of the land, it would affect the purchaser. It is also stated that the property was originally owned by Chinnapaiyan and Chidambaram and after the demise of Chidambaram, his legal heirs were enjoying the property. It is further stated that in the A register, his name viz., the name of Gopal, son of Arasan has been wrongly included especially when he has no right, title or interest over that property. It is clearly stated in the recitals that "m gjpntL Mfpatw;wpy; jtWjyhf ,lk; bgw;W ,Ug;gjhy; rpd;dg;igad; kw;Wk; fhy";brd;w rpjk;guk; mth;fspd; thhpRfs; epyj;jpid fpiuak; bra;a[k; nghJ vd; rhh;gpy; fpiuag;gj;jpuj;jpy; ifbahg;gk; ,lt[k; gl;lh bgah; khw;wk; bra;a vd; rhh;gpy; ifbahg;gk; ,lt[k; j';fSf;F mjpfhu';fis tH';fpa[s;nsd;/ Therefore, the sixth respondent herein has executed the general power of attorney deed relinquishing his right, if any in the lands covered therein. If he has stopped with only relinquishing his right, the power of attorney may otherwise be said to be properly executed. Rather, on the one hand, the sixth respondent relinquished his right, if any and on the other, he authorised his power agent to mutate the revenue records on his behalf. It is further recited that the sixth respondent authorised his agent even to prepare site layout on his behalf. On the one hand, the sixth respondent says he has no right over the land and the power of attorney is being executed to ensure that no one is affected becuase of the erroneous mutation of his name in the patta in respect of the land. On the other hand, he authorised his agent to do all the acts and deeds, including preparation of site layout as a power agent. The recitals in the power of attorney deed would indicate that he ought not to have executed such a power of attorney deed when there is no necessity to do so. In the the first portion of the said power of attorney deed dated 31.01.2008, it was clearly stated that it is being executed by A. Gopal, Son of Arasan. In the reverse of the registered instrument, the sixth respondent has admittedly signed as A. Gopal, son of Arasan. However, the documents submitted by the sixth respondent in support of his identity viz., ration card stands in the name of A. Gopal, son of Appu. This is attacked by the learned senior counsel for the petitioner to contend that there is an element of ill intention to grab the property in question and for such purpose, the sixth respondent has impersonated himself by signing the document as A. Gopal, son of Arasan even though he is A. Gopal, son of Appu. On the contrary, the learned senior counsel for the third and fourth respondent contends that it is a typeographical mistake. To be precise, it was clearly typed as jpU/ murd; mth;fspd; Fkhuh; jpU/ m/ nfhghy; Mfpa ehd; rk;kjpj;J vGjpf; bfhLf;Fk; bghJ mjpfhug; gj;jpuk;// Therefore, the contention urged on behalf of the learned Senior counsel for the respondents 3 and 4 cannot be accepted as it is not a mere typeographical mistake. In the first portion as well as in the reverse of the registered power of attorney deed dated 31.01.2008, when it is clearly stated that it is being executed by A. Gopal, son of Arasan, it cannot be attributed to a typeographical error. This Court, at this stage, is not inclined to probe further in the present case at this stage. Suffice to state that there are material evidence made available by the defacto complainant that sixth respondent acted with an element of ill-intention and it needs to be probed further.
17. In the bail application filed before this Court in Crl.OP Nos. 14928 and 14929 of 2013, an affidavit was filed by Gopal, son of Appu as directed by this Court. While granting bail, I had recorded the affidavit filed by Gopal, son of Appu in para No.3 to the effect that "Learned counsel also submitted that the petitioner repents for the mistake and has also filed an affidavit before this Court stating that "I have committed an offence of impersonation by putting by father's name as Arasan instead of Appu caused to be sold the property belonged to Hall Mark Infrastructure Private Limited. It is further stated in the said affidavit that I have no title, interest or claim." This portion of the order passed by this Court granting bail in favour of the petitioners therein would indicate that an admission was made to the effect that there was an act of impersonation and the petitioner Gopal, son of Appu repents for the same.
18. In the order passed by me granting bail on Crl.OP Nos. 14928 and 14929 of 2013 25.06.2013, I also recorded a statement of the learned Senior Counsel appearing for the petitioner therein in para No.3 to the following effect:-
"3. ....It is also submitted that though the name of the petitioner is Gopal, he has committed the offence of impersonation by putting the father's name as Arasan instead of Appu and caused the property of the defacto complainant to be sold. It is further submitted that the petitioner was asked to do so only because the original owner viz., Gopal, son of Arasan has already died and that the petitioner has not committed the offence intentionally and he had committed the mistake of only changing his father's name and for that, he is in jail from 25.05.2013.
19. Having regard to the above submission and the fact that the sixth respondent herein is aged 72 years and he has filed an affidavit before this Court to the extent that he has impersonated wrongly giving his father's name which led to creation of documents, I granted bail in favour of the petitioners in the above Criminal Original Petitions. As I have recorded the statement of the learned Senior Counsel for the petitioner therein at the time of granting bail, the present argument of the learned Senior Counsel for the respondents 3 and 4 that the contents of the affidavit gives a different meaning at that point of time cannot be accepted.
20. As regards the filing of the writ petition as well as Criminal Original Petition for transfer of investigation filed before this Court, the learned senior counsel for the petitioner as well as the counsel for the second respondent submitted that the filing of the writ petition, it culminated in an order passed by the Honourable Supreme Court on 14.08.2014 in which it was directed that the contentions urged on behalf of both sides are kept open to be adjudicated before the appropriate forum. It is needless to mention that the writ petition was filed by Wisdom Properties contending that once the Tahsildar issued patta in their favour, the enquiry sought to be conducted by the Revenue Divisional Officer is without authority of law. Therefore, challenging the notice issued by the Revenue Divisional Officer, Chengalpet for conducting an enquiry, the writ petition was filed. As mentioned above, it culminated in an order dated 14.08.2014 passed by the Honourable Supreme Court leaving the contentions urged on behalf of both sides open to be adjudicated before the competent forum. Thereafter, it appears that Civil Suits have been filed and they are pending before the Civil Court. As rightly pointed out by the learned Senior counsel for the petitioner, the filing of the writ petition as well as the dismissal of the Criminal Original Petitions seeking transfer of investigation in Crime No. 41 of 2013 has nothing to do with the present dispute where the petitioner want an investigation to be conducted in to the ill intention or mensrea on the part of the sixth respondent, in collusion with others, in fabricating a power of attorney deed dated 31.01.2008. Therefore, such an argument advanced by the learned Senior counsel for the petitioner is well founded and it cannot be said that the writ petition has been filed to harass the accused in Crime No. 41 of 2013 in any manner.
21. As far as the argument of the learned senior counsel for the respondents 3 and 4 that the properties are different and the four boundaries of the properties are different and therefore, the complaint given by the petitioner need not be gone into cannot be accepted at this stage. To prove the title to the property, both sides have produced documentary evidence and relied on to substantiate their respective case. But the fact remains that the patta in respect of the property stands in the name of Mr. A. Gopal, son of Arasan which is not disputed by any one. What is now agitated before this Court is that in connection with the dispute civil suits were filed and they are pending and therefore the parallel criminal prosecution has been launched only to harass the accused persons. As regards the civil suits filed and pending before the Civil Court, this Court isn ot expressing any opinion or inclined to give a finding as it would affect the trial. In the present Criminal Revision Case, this Court is only dealing with the manner in which the investigation was conducted by the investigation officer especially when he failed to take into account the plea of impersonation raised by the defacto complainant in executing the power of attorney by impersonating himself as A.Gopal, son of Arasan, who died long back. This Court is also taking into consideration that the investigating officer, in his final report, has erroneously concluded that there is no proof for having impersonated in executing the power of attorney deed and that A. Gopal, son of Appu was only a confirming party as far as the general power of attorney is concerned.
22. Next, it is necessary to peruse the final report filed by the investigation officer in this case. In the final report, the investigation officer has concluded as though there is no material evidence to investigate into the complaint relating to impersonation. The investigation officer has observed that "rhl;rp yypj;Fkhh; gz;lhhp vd;gth; rpjk;guk; kw;Wk; rpd;dg;igad; bgw;w fpiuaj;ij cWjp bra;at[k;. tUtha; Mtz';fspy; cs;s jtiw gad;gLj;jp m/ nfhghy; vd;gtnuh my;yJ mtuJ thhpRfnsh brhj;jpy; cphik nfhuhky; ,Ug;gjw;fhft[k;. mtiu confirming party Mf fpiua Mtz';fspy; nrh;g;gjw;fhf Mtz vz;/122-IV-2008?d; go bghJ mjpfhuk; bgw;wjhft[k;. me;j bghJ mjpfhu Mtzj;jpy; ve;j ,lj;jpYk; Hall Mark Infrastructure Pvt Ltd., epWtdk; fpiuak; bgw;Ws;s brhj;jpw;fhd rh;nt vz;. tp!;jPudk;. $f;Fge;jp. K:y fpiua Mtz vd; vJt[k; Fwpg;gpltpy;iy vd;Wk; jdJ thf;FK:yj;jpy; TWfpwhh;/ br';fy;gl;L 2 vz; ,iz rhh; gjpthsh; mYtyfj;jpy; gjpt[ bra;ag;gl;Ls;s fpua Mtz';fs; 892-2008 kw;Wk; 893-2008?y; confirming party?Mf nfhghy; j-bg/ mg;g[ nrh;f;fg;gl;Ls;shh;/ This observation of the investigation officer is patently a mistake. When the power of attorney deed dated 31.01.2008 was executed by A. Gopal, son of Arasan even though his name is A. Gopal, son of Appu the conclusion arrived at by the investigation officer that he was added only as a confirming party is untenable. Even according to the investigation officer, the patta in respect of the land stands in the name of Gopal, son of Arasan, however, it was erroneously issued in his name. The investigation officer also concludes that taking advantage of the erroneous inclusion of his name i.e., Gopal, son of Appu, somebody should not misuse it and in those circumstance, the general power of attorney came to be issued. The investigation officer also concludes that in the general power of attorney, there is no recital relating Survey number extent of boundaries to the property owned by Hallmark Infrastructure Private Limited. The investigation officer also finds support from the fact that Gopal, son of Appu has only affixed his photograph and therefore, the plea of impersonation does not arise. These conclusion arrived at by the investigation officer is contrary to the records. Further, in the general power of attorney deed dated 31.01.2008, reference was not made to the effect that Gopal, son of Arasan died even in the year 1999. In such circumstances, the investigation officer ought not to have closed the complaint as mistake of fact. This Court is of the view that the haste with which the investigation officer had concluded the investigation ought to have been taken note of by the court below, which it miserably failed. This Court also is of the view that the investigation officer has ignored vital documentary evidence to probe the ill intention on the part of the sixth respondent in executing the power of attorney deed dated 31.01.2008 by impersonating himself as Gopal, son of Arasan, even though he is Gopal, son of Appu.
23. With these background, it is necessary to examine the correctness or otherwise of the order passed by the court below. A cursory perusal of the order passed by the trial court would indicate that upto paragraph No. 21, the trial court only gave a narration of the factual scenario, arguments adduced by the counsel for both sides inter alia made reference to the documentary evidence made available. Only in para No.22, the court below stated that on consideration of the final report filed by the investigation officer together with the statement of the witnesses, investigation conducted by him, documents produced on behalf of the petitioner and the documents produced on behalf of the accused, the arguments of the counsel for both sides and the documents filed by the intervenor, this Court rejects the protest petition against the final report filed by the investigation officer. The only reason adduced by the court below in the impugned order is that the parties have resorted to civil proceedings by instituting civil proceedings and therefore, they have to await the outcome of such civil proceedings where the dispute relating to their right, title and interest will be adjudicated. No doubt, the Civil Courts are competent to adjudicate upon disputes relating to title of the property and civil transactions. It is also true that the parties to the lis have resorted to institute civil suits and they are pending. However, the petitioner herein has filed protest petition objecting to the closure of the complaint given by him. The petitioner has specifically pleaded that the investigation officer did not take note of the material evidence in the form of power of attorney deed dated 31.01.2008 executed by the sixth respondent herein, which would make out an office of impersonation. According to the petitioner, the execution of the power of attrorney deed dated 31.01.2008 by impersonation especially by signing his name as Gopal, son of Arasan even though he is Gopal, son of Appu has got to be probed into. This is more so that Gopal, son of Arasan died even during the year 1999 and while so, signing his name as Gopal, son of Arasan is unwarranted. This is precisely the grievance of the petitioner which the court below did not take note of at all. In this context, useful reference can be made to the decision of the Honourable Supreme Court in the case of Steel Authority of India vs. Sales Tax Officer, Rourkhela (2008) 16 VST 181 (SC) wherein the Honourable Supreme Court held that reasons are the heart beat of every conclusion. It is further held that an order without reasons or failure to give reasons amounts to denial of justice." "Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at. Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made; in other words, a speaking-out. The "inscrutable face of the sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance.". Applying the above decision to the facts of the present case, the order passed by the Court below is per se not sustainable. A cursory perusal of the impugned order would reveal that court below miserably failed to appreciate the documentary evidence produced on behalf of the petitioner while dismissing the protest petition filed by him. It is needless to mention that earlier, Criminal Revision Case has been filed by the petitioner aggrieved over the order passed by the Court below accepting the final report filed by the investigation officer. The Criminal Revision Case filed by the petitioner has been allowed and the matter was remitted back to the trial Court with specific observation that the trial court has to hear the parties to the case, afford them opportunity and pass orders on merits and in accordance with law. Inspite of such an order passed by the court below, the trial court, without discussing many of the submissions raised before it, has passed the impugned order without any reasoning. The impugned order has been passed by the trial court by summarily dismissing the protest petition filed by the petitioner, which is legally not sustainable. Even on merits, I find that the investigation officer failed to deal with the plea relating to impersonation and the report filed by the investigation officer is patently erroneous. In such circumstances, it is necessary for the investigation officer to deal with the plea with regard to impersonation.
24. For all the above reasons, the order dated 28.12.2014 passed in Crl.M.P. No. 4138 of 2014 in Crime No.41 of 2013 on the file of the Judicial Magistrate No.II, Chengalpattu is set aside. The Criminal Revision Case is allowed. Consequently, Crl.MP No. 4138 of 2014 in Crime No. 41 of 2013 filed by the petitioner before the trial court is allowed. Connected miscellaneous petition is closed.
29.06.2015 rsh Index : Yes / No Internet : Yes / No To
1. The Judicial Magistrate No.II Chengalpattu.
2. The Public Prosecutor High Court, Madras B. RAJENDRAN, J rsh Pre-delivery Order in Crl.R.C No. 56 of 2015 29-06-2015 CRL.RC.No.56 of 2015 B.RAJENDRAN,J., After pronouncing the order today, the learned Government Advocate (Criminal side) submitted that necessary direction may be issued to the Superintendent of Police, Kancheepuram District to appoint an Officer other than the Investigation Officer in this case, to deal with the matter.
2. In view of the said submission made, it is open to the Superintendent of Police, Kancheepuram District to appoint any Officer as he may thinks fit and necessary other than the Investigation Officer who has handled this case, to carry out fresh investigation in the matter. The Officer, so appointed, shall see to it that the investigation in the matter is completed at the earliest point of time.
29.06.2015 vj2 B.RAJENDRAN,J., vj2 CRL.RC.No.56 of 2015 29.06.2015