Madras High Court
Santhi Ramasamy vs State Rep. By on 30 June, 2023
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.O.P.No.29677 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 26.06.2023
PRONOUNCED ON : 30.06.2023
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.O.P.No.29677 of 2022 and
Crl.M.P.Nos.18181 & 18182 of 2022
Santhi Ramasamy ... Petitioner
Vs.
1.State Rep. by
The Sub Inspector of Police,
Chennai Crime Branch,
ALGSC – I, Team XVII-A,
Vepery, Chennai.
2.Muthukumar ... Respondents
PRAYER: Criminal Original Petition is filed under Section 482 of the
Code of Criminal Procedure, to call for the records in C.C.No.135 of
2022 on the file of the Special Metropolitan, Special Court for Land Grab
Cases No.II, Egmore @ Allikulam, Chennai and quash the final report
and all other proceedings pending before the trial Court.
For Petitioner : Mr.Abudu Kumar Rajarathinam,
Senior Counsel for Mr.T.Balaji
For R1 : Mr.A.Gokulakrishnan,
Additional Public Prosecutor
For R2 : Mr.P.Jesus Moris Ravi
*****
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Crl.O.P.No.29677 of 2022
ORDER
The petitioner/A11 in C.C.No.135 of 2022 facing trial for offence under Sections 467, 468, 471, 420 and 120-B IPC along with ten others, has filed this Criminal Original Petition.
2.During pendency of this petition, the case in C.C.No.135 of 2022 transferred from the file of Special Metropolitan, Special Court for Land Grab Cases No.II, Egmore @ Allikulam, Chennai to the file of Metropolitan Magistrate for Exclusive trial of CCB (relating to cheating cases in Chennai) and CBCID Cases, Egmore, Chennai.
3.The case originated on the complaint of the 2nd respondent, dated 08.12.2009. This complaint received by the Central Crime Branch, Egmore, Chennai on 09.12.2009, an endorsement made by the Assistant Commissioner of Police, Central Crime Branch, Anti Land Grabbing Wing, Chennai in the complaint on 23.04.2010 for necessary action and report. The Sub Inspector of Police, Central Crime Branch, Team XVIIA, Egmore, Chennai/1st respondent Police registered FIR in Crime No.20 of Page No.2 of 42 https://www.mhc.tn.gov.in/judis Crl.O.P.No.29677 of 2022 2011 on 19.01.2011 based on the report.
4.Gist of the case as per complaint is as follows:
(i)The 2nd respondent and his wife Gunaseeli are the absolute owners of the property bearing door Nos.57/2, 57/4, 57/5, 57/6 & 57/7 comprised in T.S.Nos.8064/2, 8064/4 & 8064/6 at T.Nagar, Mambalam, Guindy Taluk, Chennai. The 2nd respondent's neighbour Parvathi, wife of Subbiah is the owner of the property bearing door No.57/1, comprised in T.S.No.8064/3 and one Dhanammal was the owner of the property being door No.57/3 comprised in T.S.No.8064/5.
(ii)All of them purchased and acquired title over the property in between 1979 to 1982 by various sale deeds from common owners namely S.Neelakanda Sharma @ S.N.Sharma/A1, N.Sankara Narayana Sharma @ City Babu/A2 and N.Seetharama Sharma @ Rajesh/A3. After purchase of property, ten years later, Swarna Vannilarasu/A4, V.Sharmila/A5, V.Sujatha/A6, Pariraja/A7, S.Neelakanda Sharma @ S.N.Sharma/A1, N.Sankara Narayana Sharma @ City Babu/A2 and N.Seetharama Sharma @ Rajesh/A3, Inderchand Nahar/A8 and Page No.3 of 42 https://www.mhc.tn.gov.in/judis Crl.O.P.No.29677 of 2022 Mahendrakumar Nahar/A9 conspired together and with an intention to grab the properties, created forged and fabricated documents such as partition deed, dated 15.03.1990 between the said S.Neelakanda Sharma and two others sale deeds, dated 21.03.1990 in the name of Swarna Vannilarasu/A4, V.Sharmila/A5 and V.Sujatha/A6 and sale agreement in the name of Pariraja/A7 and sale deed, dated 14.03.2005 in the name of Inderchand Nahar/A8.
(iii)By using these forged and false documents, the above said persons are making attempts to grab the 2nd respondent's property, attempting to deceive as real owners. With such intention in wrongfully deceiving the property, the above said persons conspired with one A.Nandakumar, the then Tahsildar of Mambalam, said A.Nandakumar having received illegal gratification from Inderchand Nahar/A8 and others, illegally cancelled the pattas which were validly given in the name of 2nd respondent and as such abetted the said Inderchand Nahar/A8 and others in creating the forged and false documents. Hence, the complaint. Page No.4 of 42
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5.The case, as per the charge sheet, is as follows:
(i)Originally the property belongs to the family of Neelankanda Sharma/A1, Sankara Narayana Sharma/A2, and N.Seetharama Sharma @ Rajesh/A3. The 2nd respondent along with Parvathi, Dhanammal, Chandrammal and Paramasivam were tenants of the property.
Paramasivam purchased a part of the property measuring to an extent of 756 sq.ft. registered vide document No.809 of 1979, dated 16.07.1979. Parvathi purchased a part of the property measuring to an extent of 1326 sq.ft. registered vide document No.1918 of 1979, dated 19.12.1979. Dhanammal purchased a part of the property measuring to an extent of 1200 sq.ft. registered vide document No.824 of 1980, dated 28.05.1980. The 2nd respondent purchased a part of the property measuring to an extent of 840 sq.ft vide registered document No.1059 of 1980, dated 08.07.1980. Chandrammal purchased a part of the property measuring to an extent of 200 sq.ft registered vide document No.2510 of 1981, dated 07.11.1981. Gunaceele purchased a part of the property measuring to an extent of 700 sq.ft registered vide document No.1940 of 1982, dated 06.11.1982. The 2nd respondent purchased a part of the property measuring to an extent of 840 sq.ft registered vide document No.1941 of Page No.5 of 42 https://www.mhc.tn.gov.in/judis Crl.O.P.No.29677 of 2022 1982, dated 06.11.1982. All the above said sale deeds executed by A1 to A3. The 2nd respondent purchased the part of the property from Paramasivam, measuring to an extent of 756 sq.ft registered vide document No.538 of 1983, dated 02.06.1983. Gunaceele purchased the part of the property from Chandrammal measuring to an extent of 200 sq.ft registered vide document No.1943 of 1982, dated 06.11.1982. There is a common pathway for the property measuring to an extent of 499 sq.ft.
(ii)A1 to A3 before executing the sale deeds to the 2 nd respondent and others, mortgaged the property with one Govindarajalu, a private financier. The said Govindarajalu filed a civil suit against A1 to A3 for non repayment of the loan in C.S.No.18 of 1972 and got decree in his favour. Suppressing these facts, A1 to A3 executed sale deeds in favour of 2nd respondent and others. After coming to know about these facts, 2 nd respondent and others settled the private financier and had the property in their possession. Moreover, 2nd respondent submitted documents of said property to the Indian Overseas Bank, Cathedral Branch, Chennai since 1982 as collateral for the loan he obtained for his Press named Page No.6 of 42 https://www.mhc.tn.gov.in/judis Crl.O.P.No.29677 of 2022 “Nagarajan Printers” which functioned at 57/6, Habibullah Road, T. Nagar, Chennai and taken back the Documents from bank in the year 2022 after repaying the loan amount.
(iii)A1 to A3 to alienate the property from 2nd respondent and others again suppressed the fact about the property and during 1990's i.e., after the sale deeds, partitioned the property among themselves vide registered document No.998 of 1990, dated 16.03.1990 at Sub Registrar Office, T.Nagar. Based on the strength of forged partition deed, A3 executed a sale deed in favour of A6 vide document No.926 of 1990, dated 03.08.1990 measuring to an extent of 2838 sq.ft. A2 executed a sale deed in favour of A4 measuring to an extent of 2100 sq.ft registered vide document No.927 of 1990, dated 03.04.1990. A1 executed a sale deed in favour of A5 vide document No.990 of 1990, dated 17.04.1990 registered at Sub Registrar Office, T. Nagar, Chennai. Subsequently A4, A5, A6 entered into a sale agreement vide document No.1103 of 2003, dated 09.05.2003.
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(iv)After entering into this sale agreement A4, A5 & A6 executed a sale deed in favour of A8 to the entire property i.e., 6188 sq.ft registered vide document No.644 of 2005, dated 14.03.2005. After this registration, A9, son of A8 obtained general power of attorney registered vide document No.382 of 2005, dated 28.03.2005 from one Dhanammal measuring to an extent of 1200 Sq.ft and executed a sale deed to his father A8 registered vide document No.802 of 2005, dated 28.03.2005 for the said 1200 sq.ft along with common way 600 sq.ft totally measuring to an extent of 1800 sq.ft. After obtaining sale deed for the whole property in his name, A8, his son A9 obtained a general power of attorney from one of the original owner who purchased a part of the property along with the 2nd respondent and A8 obtained sale deed again for 1800 sq.ft from A9. Subsequently A10 and petitioner/A11 purchased the property from A8 vide registered sale deed in document No.327 of 2010, dated 18.02.2010. A10 and petitioner/A11 in turn mortgaged the property by depositing the title deeds in the State Bank of India, Harur Branch, Chennai to a tune of 4.5 Crores and registered vide document No.1482 of 2010, dated 21.05.2010.
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6.After registration of FIR in the year 2011, investigation progressed and finally, charge sheet made ready on 20.10.2022 citing eleven accused, in which, the petitioner is A11 and her husband A10 and listing five witnesses, of whom, two are official witnesses (LW4 & LW5 Investigating Officers) and others are 2nd respondent/LW1, his wife/LW2 and one Parvathi/LW3. Later, the charge sheet filed before the Special Metropolitan Magsitrate, Special Court for Land Grab Cases No.II, Egmore @ Allikulam, Chennai on 28.10.2022. Though eleven persons shown as accused, 1st respondent Police in the charge sheet stated that “A1 Kjy; A7 tiuapyhd Vida vjphpfis gw;wpa jfty;fs; fpilf;Fk; gl;rj;jpy; mth;fs; kPJ jdpahf Fw;wg;gj;jphpf;if jhf;fy; bra;ag;gLk; vdnt vjphpfs; A8, A9, A10, A11 Mfpath;fs; kPJ ,Wjpawpf;if jhf;fy;
bra;ag;gLfpwJ/”
7.Learned Senior Counsel appearing for the petitioner/A11 filed typed set of documents and made the following submissions:
(i)Learned Senior Counsel submitted that the names of petitioner and her husband/A10 do not find place in the complaint as well FIR. Page No.9 of 42
https://www.mhc.tn.gov.in/judis Crl.O.P.No.29677 of 2022 Even in statements under Section 161 Cr.P.C., of LW1 to LW3, nothing to show petitioner and her husband conspired with other accused in any manner even to remotely suggest or infer, further no materials to show petitioner/A11 and her husband/A10 joined other accused and conspired in creation of any documents prior to purchase of the property from A8 vide sale deed in document No.327 of 2010 on 18.02.2010. He further submitted that in registered sale deed in document No.327 of 2010, in page No.6, entire sale consideration of Rs.3,96,30,280/- made through bank by way of demand draft and RTGS is recorded. The scanned reproduction of the same is as follows:-
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(ii)Learned Senior Counsel further submitted that the vendor to the petitioner/A8 submitted 21 documents to petitioner on 30.01.2010 after collecting substantial part of sale consideration of nearly Rs.3 Crores.
The 21 documents are sale deed, parents documents from the year 1939 up to 2005, patta copy, town survey and land survey extracts, property assessment order, property tax receipt, property demand, water and sewage tax charges and encumbrance certificates. These documents submitted to State Bank of India, Harur branch on 05.03.2010. The bank acknowledged receipt of the same and issued receipt. The submitted documents checked and verified on 02.07.2020, documents were forwarded by the bank to its panel Advocate one K.Paranthaman, who verified, examined documents and gave report dated 05.03.2010 with opinion that the above said documents properly valued and registered and there was no subsisting encumbrance over the security of property. On the strength of the same, the property was mortgaged with the bank. He further submitted that the encumbrance certificate to the property from 01.01.1974 to 03.03.2010 submitted and the same was examined by the bank panel Advocate along with other documents. Page No.12 of 42 https://www.mhc.tn.gov.in/judis Crl.O.P.No.29677 of 2022 Totally, the panel advocates examined 21 documents and gave his legal opinion, dated 05.03.2010. The previous documents to the sale deed document No.327 of 2010 are all registered documents.
(iii)Learned Senior Counsel further submitted that 2nd respondent filed C.S.No.172 of 2010 on 07.01.2010, in which, petitioner and her husband not parties when it was filed. Later, by way of application in A.No.3238 of 2011, petitioner and her husband made as parties as defendants 12 and 13, by order, dated 25.09.2012. Thus, the admitted case is that 2nd respondent lodged complaint against A1 to A9 alone on 08.12.2009. The allegation is only against A1 to A9, who are said to have created 2nd respondent by creating forged documents and using the same, had encumbered the property and attempted to usurp the property of 2nd respondent. In this case, admittedly, petitioner purchased the property only on 03.02.2010. Prior to purchase, requisite documents verified, examined and scrutinized. After getting legal opinion, finding that revenue records and patta are in the name of vendor/A8, the property was purchased by petitioner. Thereafter, purchased property mortgaged with the State Bank of India, Harur Branch, all documents handed over Page No.13 of 42 https://www.mhc.tn.gov.in/judis Crl.O.P.No.29677 of 2022 by the vendor/A8 to the petitioner, submitted along with sale deed in document No.327 of 2010. These documents verified, scrutinized and thereafter, the bank panel Advocate gave legal opinion, then bank conducted physical inspection. Thereafter, title deeds deposited, registered as document No.1482 of 2010 on 08.07.2010, charge created and mortgage loan was granted to the petitioner. These are the facts. The Investigating Report does not question or dispute on these facts. In such circumstances, the proceedings against petitioner and her husband/A10 would amount to abuse of process of law.
(iv)Learned Senior Counsel further submitted that in the Investigating Report, nothing finds adverse of above said documents, on the other hand, 1st respondent Police added petitioner and her husband as accused invoking theory of conspiracy. The uncontroverted statement of witnesses LW1 to LW3 does not disclose any offence committed by A10 and petitioner/A11. The documents collected noway suggest or lead to any inference about any conspiracy between the petitioner, her husband and other accused. The petitioner purchased property in the year 2010, the complaint is of the year 2009. While that being so, there is no Page No.14 of 42 https://www.mhc.tn.gov.in/judis Crl.O.P.No.29677 of 2022 question of any conspiracy between petitioner and other accused. Dehorse the conspiracy, there is nothing against the petitioner and her husband. The mortgage loan was repaid.
(v)It is further submitted that in this case, admitted case of the 2 nd respondent is that out of total extent of 6384.5 sq.ft, 2nd respondent purchased property of 3173 sq.ft from 1980 to 1983 from Neelakanda Sharma/A1. The vendor/A8 to the petitioner claim his title to the property by way of partition deed in document No.998 of 1990 from Neelakanda Sharma/A1 and his two sons N.Sankara Narayana Sharma @ City Babu/A2 and N.Seetharama Sharma @ Rajesh/A3, who executed the sale deed in favour of A4 to A6. The partition deed is a registered document in No.998 of 1990, the sale deed is by way of document Nos.926, 927 & 999 of 1990. Thereafter, these three persons, namely, A4 to A6 sold the property to A8 by way of document No.644 of 2005. Five years thereafter, petitioner and her husband purchased property vide document No.327 of 2010, dated 18.02.2010. Thereafter, they mortgaged the said property with State Bank of India, Harur vide document No.1482 of 2010, all these documents are registered Page No.15 of 42 https://www.mhc.tn.gov.in/judis Crl.O.P.No.29677 of 2022 documents. The 2nd respondent/LW1 in his evidence in C.S.No.172 of 2010 deposes that he did not file any suit claiming declaration of title in respect of suit property from the year 2003 to 2010 eventhough there was dispute. Further, he admits that petitioner and her husband purchased property on 18.02.2010. Further, he admits that A8 purchased the property on 14.03.2005 and A8 is in possession of property and presently, the possession is with petitioner and her husband. Admitted position is that petitioner and her husband added as defendants in the suit only on 25.09.2012.
(vi)He further submitted that from the year 2005, A8 was in possession of property as could be seen from revenue and municipal records and other documents. The petitioner took possession of the property from A8 and he is in enjoyment. The admitted case is that only in the year 2012, the petitioner and her husband made as defendants in C.S.No.172 of 2010. This civil suit is filed by 2nd respondent and his wife to declare them as absolute owner of property, for usage of common passage to deal with the property. The property is clouded with mystery having claim and counter claim between 2nd respondent and other Page No.16 of 42 https://www.mhc.tn.gov.in/judis Crl.O.P.No.29677 of 2022 defendants to the suit in C.S.No.172 of 2010 over the property even prior to the year 2009. Admittedly, the property is larger area to the extent of 6384 sq.ft, of which 2nd respondent's claim is for 3173 sq.ft. The property is contiguous with adjacent plots, there is some dispute with regard to the boundaries, common passage and enjoyment, which cannot be decided in a criminal case. This has to be necessarily decided only in the civil suit, that is C.S.No.172 of 2010 filed by 2nd respondent. In civil suit, the 2nd respondent in his evidence, admits the possession to be with A8, who is vendor to the petitioner. In such circumstances, 1st respondent Police ought not to have included petitioner and her husband as accused in this case without any materials.
(vii)He further submitted that it is unheard in the criminal jurisprudence how a case which has been projected against 11 persons and that too A1 and A3 prime accused who are said to have executed double documents to the same property, one in favour of 2 nd respondent and other in favour of petitioner vendor's predecessor. The entire case hinges on the partition deed in document No.998 of 1990 unless securing and examining A1 to A7, the truth and veracity of each of their claim Page No.17 of 42 https://www.mhc.tn.gov.in/judis Crl.O.P.No.29677 of 2022 corresponding to the documents cannot be clarified and confirmed. From charge sheet, it is seen that no steps taken to secure A1 to A7 by way of serving summons or by any other means. Nothing has been stated in charge sheet except stating that A1 to A7 not arrested and as regards other accused, A8 obtained Anticipatory bail, A9 served with notice under Section 41A Cr.P.C., A10 and A11 not arrested, further in the final report, it is recorded that charge sheet would be filed against A1 to A7 as and when the information against them is gathered and received. This would clearly show the investigation is clouded with mystery and malafide.
(viii)He further submitted that in this case, case came to be registered on 18.12.2009, FIR came to be registered after one year and one month on 19.01.2011, thereafter, charge sheet made ready on 20.10.2022 and the same filed before the Court on 28.10.2022. No explanation given for such inordinate delay from the date of receipt of the complaint, registration of FIR and filing of charge sheet. This inordinate delay is affecting the fundamental right guaranteed under Article 21 of the Constitution of India. Thus, from the facts of the case, it is clear that Page No.18 of 42 https://www.mhc.tn.gov.in/judis Crl.O.P.No.29677 of 2022 predominantly a civil dispute given criminal colour. The 1st respondent Police for the reasons best known, investigated the case and filed charge sheet citing only five witnesses, that too nearly after 11 years. The trial Court ought not to have taken the charge sheet on file. Hence, the continuation of the proceedings against petitioner and her husband is nothing but abuse of process of law.
(ix)In support of his contention, learned Senior Counsel relied on the following decisions:
● “Pankaj Kumar Versus State of Maharashtra & Ors., reported in (2008) 16 SCC 117” for the principle that right of speedy trial in all criminal prosecutions is an inalienable right under Article 21 of the Constitution. This right is applicable not only to the actual proceedings in court but also includes within its sweep the preceding police investigations as well. In view of the same, the petitioner's constitutional right recognized under Article 21 of Constitution of India stands violated.
● “Rajeshbhai Muljibhai Patel and others Versus State of Gujarat and another reported in (2020) 3 SCC 794” for the principle that when the issue as to the genuineness of the sale deed is pending consideration in the civil suit, in all prudence, charge sheet ought Page No.19 of 42 https://www.mhc.tn.gov.in/judis Crl.O.P.No.29677 of 2022 not to have been allowed to continue as it would prejudice the interest of the parties and the stand taken by them in the civil suit. ● “Gulam Mustafa Versus The State of Karnataka and Ors., reported in 2023 SCC OnLine SC 603” for the principle that the Hon'ble Apex Court referring to Neeharika Infrastructure Pvt. Ltd. v State of Maharashtra, 2021 SCC OnLine SC 315 held that the inherent powers under Section 482 Cr.P.C., is to prevent abuse of process or to secure the ends of justice is a valuable safeguard for protecting liberty.
● “Chanchalpati Das Versus The State of West Bengal & Anr., reported in 2023 LiveLaw (SC) 446”, wherein consistent view of the Hon'ble Apex Court is that the criminal cases can be quashed by High Court when it finds that the continuation of the case is abuse of process. This point has been reiterated in the cases of “State of Karnataka Versus L.Muniswamy and Ors reported in (1977) 2 SCC 699” and “State of Haryana and Ors., Versus Bhajan Lal and Ors., reported in 1992 Supp. (1) SC 335” and other cases also.
8.Learned Additional Public Prosecutor appearing for the 1st respondent Police filed counter narrating the registration of case, examination of witnesses, namely LW1 to LW3, collection of documents, Page No.20 of 42 https://www.mhc.tn.gov.in/judis Crl.O.P.No.29677 of 2022 verification of the same and submitted that the petitioner along with her husband knowingly that forged document has been created by the other accused to cheat and usurp the property of 2nd respondent, knowingly entered into a sale deed with A8 and purchased the property based on the forged documents. These forged documents are projected as genuine and thereafter, the said property has been mortgaged with the State Bank of India, Harur, received huge sums of money. He further submitted that there have been civil suits filed by the petitioner's vendor/A8 and his predecessor. All the suits were dismissed against the vendor to the petitioner. The petitioner but for the conspiracy could not have purchased property which was embroiled in several litigations. He further submitted that the patta, which was initially in the name of 2 nd respondent got cancelled and issued in the name of A8. The 2 nd respondent preferred an appeal before the District Revenue Officer, Chennai, who vide order dated 12.05.2010 in Na.Ka.No.J510613 of 2009 set aside the order of the Tahsildar, dated 18.12.2008 granting patta to A8. During this interregnum period, the property is said to have been purchased by the petitioner.
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9.It is further submitted that in OS.No.6373 of 2013, Parvathi/LW3 filed suit against A8, A10 and petitioner/A11 and obtained decree in her favour restraining the petitioner and her husband and vendor to the petitioner not to alienate the suit property. Thus, the title to the property stands in the name of LW1 to LW3. The petitioner as well as her vendor/A8 having no right to the property, created documents and projected it as valuable security and mortgage the property and obtained loan. Further submitted that the encumbrance certificate collected reflects the sale deed of 2nd respondent and other owners who legally purchased the property from A1 to A3 and they had also settled the mortgage created by A1 to A3 with private financier Govindharajalu, thereafter, got the property and sale deed executed in their name. In this case, there are only five witnesses listed in the charge sheet, of which, LW4 & LW5 are official witnesses. These are disputed facts. Hence, the trial can be completed within a short period and sought for dismissal of the Quash Petition.
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10.Learned counsel for the 2nd respondent filed typed set listing documents and made his submissions that suit property in C.S.No.172 of 2010 is door No.57, old door No.82, Habihullah road, T.Nagar, Chennai to the total extent of 6384.5 sq.ft. The 2nd respondent purchased the property of 3173 sq.ft in document Nos.1059 of 1980, 1940 of 1982, 1941 of 1982, 1943 of 1983 and 538 of 1983. For better appreciation, scanned reproduction of flowchart submitted by learned counsel for 2nd respondent is as follows:
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11.Referring to flowchart, learned counsel for 2nd respondent submitted that property has been purchased by 2nd respondent from A1. After selling the property, A1 executed partition deed in document No.998 of 1990 between himself and his two sons/A2 & A3. Thereafter, A1, his sons/A2 & A3 sold property to A4 to A6 vide document Nos.926 of 1990, 927 of 1990 and 999 of 1990. Thereafter, A4 to A6 sold the property to vendor/A8 to petitioner. Learned counsel further submitted that 2nd respondent and his wife are owners of immovable property measuring 3176 sq.ft in old No.82, New No.57, T.S.No.8064/2, 8064/4 and 8064/6, Habibullah Road, T.Nagar, Chennai. The property was purchased vide sale deed in document Nos.1059 of 1980 and 1940 of 1982 from A1 to A3 and through document No.538 of 1983 from one Paramasivam, who purchased the property from A1 to A3 vide document No.809 of 1979, the 2nd respondent's wife Gunaceeli through document Nos.1941 of 1982, 1943 of 1983 from Chandrammal, who purchased the same from A1 to A3. Thus, 2nd respondent and his wife purchased to the extent of 3173 sq.ft out of 6188 sq.ft. From then, they were in possession and enjoyment of the property. A1 to A3 prior to executing sale deed in Page No.25 of 42 https://www.mhc.tn.gov.in/judis Crl.O.P.No.29677 of 2022 favour of 2nd respondent, had mortgaged the property with Govindharajalu, a private financier, who filed civil suit against A1 to A3 in C.S.No.18 of 1972 and obtained decree in his favour. Suppressing these facts, A1 to A3 executed sale deed in favour of 2nd respondent. The 2nd respondent on coming to know about the same, questioned A1 to A3 and filed applications but failed in the civil suit, thereafter, entered into compromise and settled the private financier. Further, the 2nd respondent submitted the title deeds of the property as collateral and obtained loan from Indian Overseas Bank, Cathedral Branch, Chennai since 1982 as collateral for the loan he obtained for his Press named “Nagarajan Printers”. Now, loan has been settled to the bank and documents taken back from the bank in the year 2022. Suppressing the sale to 2nd respondent, A1 to A3 created partition deed and registered the same as document No.998 of 1990, thereafter, they created further sale deeds in favour of A4 to A6 in document Nos.926, 927 and 990 of 1990. Thereafter, the sale deed registered by A4 to A6 to the entire property of 6188 sq.ft by way of document No.644 of 2005, dated 14.03.2005, after that, the sale deed executed in favour of the petitioner and her husband in document No.327 of 2010. Further, by depositing title deed and Page No.26 of 42 https://www.mhc.tn.gov.in/judis Crl.O.P.No.29677 of 2022 mortgaging the property in document No.1482 of 2010, the petitioner and her husband/A10 had further encumbered the property. All the accused acted in tandem and created valuable security on the forged documents, further knowingly used the forged documents, cheated the 2nd respondent.
12.Learned counsel further submitted that petitioner and her husband knowing well, aware about dispute in the title deed, conspired with the other accused in creation of forged documents. A1 to A3 after selling the portion of property to 2nd respondent and his wife, subsequently created partition deed and sold the entire property including the properties sold the 2nd respondent to A4 to A6 by creating forged documents. The petitioner are well aware about the same since there have been civil suits filed by the petitioner as well LW3 against A8 and others. A4 to A7 filed civil suit in O.S.No.5773 of 2004, in which, 2nd respondent, his wife/LW2 and Subbiah (husband of Parvathi/LW3) and one Chandrammal are defendants. After filing this suit, A4 to A7 shown no interest in the suit, hence, the suit got dismissed. Further, A8 filed Interlocutory application in I.A.No.1917 of 2004 in O.S.No.5773 of 2004 which was not considered. Thereafter, A8 filed C.R.P.No.2093 of 2004 Page No.27 of 42 https://www.mhc.tn.gov.in/judis Crl.O.P.No.29677 of 2022 and this Court passed order on 06.04.2005, for non-compliance of the order by the lower Court, contempt Petition in No.767 of 2005 and Sub Application No.266 of 2005 filed and later, dismissed on 14.02.2006. Further, A8 filed O.S.No.2348 of 2007 seeking injunction restraining 2 nd respondent and husband of LW3 not to interfere with the peaceful possession of A8. Later, the suit was dismissed as withdrawn on 18.06.2007. A8 again filed suit in O.S.No.6888 of 2009 against the 2nd respondent, his wife and LW3 with similar prayer. Thus, A8 by filing civil suits, getting interim orders, using the same, had entered into the property forcibly and thereafter, he withdrew all the civil suits.
13.Learned counsel for the 2nd respondent produced and placed reliance on the order passed by the District Revenue Officer, Chennai in Na.Ka.No.J5/10613/2009, dated 12.05.2010, wherein it is observed without proper verification of documents and enquiry, sub division created and patta issued in the name of A8 by the Tahsildar, Mambalam in proceedings No.A2/31535/2008, dated 18.12.2008. In the appeal, the District Revenue Officer, Chennai examined the witnesses and documents produced, thereafter, found that the Tahsildar had not properly examined Page No.28 of 42 https://www.mhc.tn.gov.in/judis Crl.O.P.No.29677 of 2022 the documents and without proper enquiry had passed wrong order granting patta to A8. Hence, the patta issued to A8 was cancelled on 12.05.2010.
14.It is further submitted that one of the purchaser of the property namely Parvathi filed a suit against A8, petitioner/A11 and her husband/A10 in O.S.No.6373 of 2013 seeking permanent injunction restraining them from selling the suit property to anyone. On coming to know about the issuance of patta in the name of A8, A10 and petitioner/A11 purchased the property. Thereafter, the District Revenue Officer, Chennai cancelled the patta issued in the name of A8. The suit in O.S.No.6373 of 2013 was decreed by judgment, dated 28.11.2022 directing the sale deed to get validated in accordance with law. He further submitted that right from the year 1990, the accused persons in a concerted manner created documents, using the same, dealt with the property, for which, they have no right. By using forged documents, land brokers and muscle men entered into the property and demolished the building put up by 2nd respondent. The 1st respondent Police not taken any immediate action. Added to it, A8 filed suits, lodged complaints and Page No.29 of 42 https://www.mhc.tn.gov.in/judis Crl.O.P.No.29677 of 2022 using the same had successfully executed his design by entering into the property and took possession forcibly from the year 2005 and thereafter, in the year 2010, executed sale deed in favour of A10 and A11. Thus, the tussle between 2nd respondent and others, who created false documents, going on for long years.
15.Learned counsel further submitted that cancellation of patta and restoration of same are known to everyone. While that being so, petitioner's now claiming that she and her husband not aware about the civil suits and tussle between 2nd respondent and A8, is surprising. Now petitioner and her husband made as defendants in the civil suit in C.S.No.172 of 2010. In this case, A1 to A7 are absconding, unable to be traced. In view of the same, as against A8 to A11, charge sheet filed and immediately after receipt of summons, petitioner/A11 approached this Court and obtained stay, due to which, the trial could not be proceeded. In view of the above and the points raised by petitioner are factual and disputed, the case has to be necessarily decided during trial. Hence, prayed for dismissal.
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16.This Court considered the rival submissions and perused the materials available on record.
17.In this case, the complaint given in the year 2009 and FIR registered in the year 2011. The admitted case is that the FIR is registered only against A1 to A9, the petitioner/A11 and her husband/A10 are not named accused in the FIR. After eleven years of investigation, charge sheet filed in the month of October, 2022. In the charge sheet, five witnesses listed, namely, the 2nd respondent/defacto complainant as LW1, his wife as LW2 and one of the owner Parvathi as LW3 and two Investigating Officers as LW4 & LW5. In this case, no reason given for delay of one year, one month in registering the FIR and concluding the investigation and filing charge sheet after eleven years. On perusal of charge sheet, it is seen that no reason given for such inordinate delay and further, there is no condonation sought by the prosecution or delay condoned.
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18.The case has been projected for forgery of valuable security for the purpose of cheating, using forged documents as genuine, cheating and conspiracy. In this case, the forgery is on factual aspect as could be seen. The claim of 2nd respondent is that he purchased 3173 sq.ft in the total extent of 6384.5 sq.ft of land from A1 to A3. It is also seen that A1 to A3 suppressing the mortgage with Govindarajalu and civil suit in C.S.No.18 of 1972, had executed sale deed and later, compromise arrived and it has been set right and the sale document were between 1980 and 1983. This being so, it is seen that the partition deed in document No.998 of 1990 between A1 and A3 is projected to be forged for the reason that this partition deed includes 3173 sq.ft which already sold to 2nd respondent, thereafter, three sale deeds in document Nos.926, 927 & 999 of 1990 in the name of A4 & A5 is said to have been executed by A1 to A3 including lands which have been sold to 2nd respondent, hence, by suppression these documents executed. A8 purchased the property vide document No.644 of 2005, his title and right to the property is clouded and disputed. Hence, without clear title, for larger extent of land that is 6384.5 sq.ft, sale deed executed in favour of A8 by his vendors A4 to A6. Further, there is some dispute with regard to boundaries and extent in the Page No.32 of 42 https://www.mhc.tn.gov.in/judis Crl.O.P.No.29677 of 2022 documents. A8 executed sale deed in favour of A10 and petitioner/A11 vide document No.327 of 2010. Admittedly, the sale deed in document No.327 of 2010 got executed on 18.12.2010 after lodging the complaint. Hence, the primary grievance of 2nd respondent that creation of forged documents for the purpose of cheating and using the same as genuine happened prior to 08.12.2009.
19.The admitted case is that the petitioner/A11 and her husband/A10 have nothing to do with the forgery or other related offence. This is further fortified by the Hon'ble Apex Court in the case of “Mohammed Ibrahim Versus State of Bihar reported in (2009) 8 SCC 751”. The only offence which hinges the petitioner/A11, her husband/A10 with the other accused is offence under Section 120-B IPC i.e., Conspiracy. Admittedly, in this case, there is no material to suggest or infer even remotely to show there was meeting of mind with common design between the petitioner/A11, her husband/A10 and the other accused, namely, A1 to A9 except the allegation of conspiracy, there is no further allegations at all by which it can be said that the petitioner/A11 and her husband/A10 have committed the offence under Sections 467, Page No.33 of 42 https://www.mhc.tn.gov.in/judis Crl.O.P.No.29677 of 2022 468, 471, 420 and 120-B IPC. The main allegations are against other co- accused. The 2nd respondent placed heavy reliance on the civil suits filed by A8/vendor to the petitioner in O.S.No.2348 of 2007 and O.S.No.6888 of 2009 and also the suit filed by A4 to A7 in O.S.No.5773 of 2004 and suit filed by Parvathi in O.S.No.6373 of 2013, one of the land owners. It is seen that except for O.S.No.6373 of 2013, in none of the civil suits, the petitioner/A11 and her husband/A10 are parties to the suits.
20.It is seen that O.S.No.2348 of 2007 and O.S.No.6888 of 2009 filed by A8 is for bare injunction and the same were later withdrawn. As regards, O.S.No.5773 of 2004 filed by A4 to A7, the plaintiffs showed no interest in prosecuting the suit and thereafter, the suit was dismissed. In all these suits, it is clear that the petitioner/A11 and her husband/A10 are not parties to the proceedings.
21.In the suit in O.S.No.6373 of 2013 filed by one of the land owners, namely Parvathi, the petitioner and her husband/A10 are shown as 2nd & 3rd defendants along with A8 as first defendant. This suit filed seeking relief of permanent injunction restraining the defendants in Page No.34 of 42 https://www.mhc.tn.gov.in/judis Crl.O.P.No.29677 of 2022 selling the suit properties to other third parties. In the suit, the primary averments is against A8. The conclusion and decree is that the defendants not to alienate the suit property to any other third parties in any manner unless and until sale deeds stands in the name of the defendants get validated in accordance with law, which is nothing but to wait and abide by the judgment and decree in civil suit in C.S.No.172 of 2010 which is pending before this Court. Admittedly, in this suit, the petitioner and her husband originally not arrayed as defendants and subsequently, they were impleaded as defendants as per order made in A.No.3238 of 2011, dated 25.09.2012. Thus in all prudence, the 1 st respondent Police ought to have shown the petitioner/A11 and her husband/A10 as witnesses, not as co-accused.
22.From the statements of three witnesses (LW1 to LW3), it is seen except stray reference about the petitioner and her husband that they purchased the property vide document No.327 of 2010 on 18.02.2010, by using forged document and the Revenue Divisional Officer, Chennai set aside and cancelled the patta issued against A8 and restored patta in the name of 2nd respondent. Apart from this one line reference found, there is Page No.35 of 42 https://www.mhc.tn.gov.in/judis Crl.O.P.No.29677 of 2022 nothing more. The Revenue Divisional Officer, Chennai in proceedings in Na.Ka.No.J510613/2009 restored the patta in favour of the 2nd respondent. From the report of the Revenue Divisional Officer, dated 12.05.2010, it is seen that the petitioner and her husband are not a party to the proceedings and nowhere in the report, there is any reference to document No.327 of 2010 and about petitioner/A11 and her husband/A10. That being so, the statement of LW1 to LW3 have no credence, as against the petitioner/A11 and her husband/A10.
23.This Court as well as Hon'ble Apex Court in several judgments held that bonafide purchasers of the property in question cannot be proceeded along with the other accused when the property is purchased on payment of sale consideration. The Hon'ble Apex Court more recently reiterated that principle in the case of “Smt.Reka Jain & Anr., Versus State of Uttar Pradesh and others reported in (2022) 3 SCC 497”. The primary consideration to be looked into is that whether the sale is real, whether sale consideration has been passed or it is a sham for the purpose of creating documents. In this case, the entire sale consideration to A8 is through bank by demand drafts and RTGS. The details are reflected in Page No.36 of 42 https://www.mhc.tn.gov.in/judis Crl.O.P.No.29677 of 2022 registered sale deed in document No.327 of 2010 in page No.6, as follows:
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24.This fact not questioned or disputed. Added to it, the documents which were received by the petitioner and her husband from A8, once again scrutinized by the panel Advocate of State Bank of India which is also not disputed. On the strength of it, by mortgage deed in document No.1482 of 2010, mortgage charge created to the property in document No.327 of 2010. The bank not raised any objections with regard to the mortgage. It is also submitted that the mortgage has been discharged. The preceding documents to document No.327 of 2010, all are registered documents. In this case, not even a piece of material available to show that prior to purchase of the property, petitioner and her husband were aware about the litigations and dispute in the property between the 2nd respondent and other accused namely A8.
25.Thus, looking the case from any angle, this Court finds that the materials on record does not prima facie constitute offence against the petitioner/A11 and her husband/A10 and no case made out against them. Hence, the continuation of the proceedings against the petitioner/A11 and her husband/A10 would tantamount to amount to abuse of process of Page No.39 of 42 https://www.mhc.tn.gov.in/judis Crl.O.P.No.29677 of 2022 law. Finding that the averments and allegations against A10 identical and similar, this Court is inclined to quash the case against the petitioner/A11 along with A10, who is also similarly placed.
26.In the result, the proceedings in C.C.No.135 of 2022, on the file of the Special Metropolitan, Special Court for Land Grab Cases No.II, Egmore @ Allikulam, Chennai, is hereby quashed against both the petitioner-Santhi Ramasamy/A11 and her husband-Ramasamy/A10, who is also similarly placed as that of the petitioner. Accordingly, this Criminal Original Petition is allowed.
27.It is seen that a notification issued that the case in C.C.No.135 of 2022 along with other cases, have been transferred to the file of the Metropolitan Magistrate for Exclusive trial of CCB (relating to cheating cases in Chennai) and CBCID Cases, Egmore, Chennai on administrative orders and yet to be numbered. If the case in C.C.No.135 of 2022 stands transferred to Metropolitan Magistrate for Exclusive trial of CCB (relating to cheating cases in Chennai) and CBCID Cases, Egmore, Chennai, Page No.40 of 42 https://www.mhc.tn.gov.in/judis Crl.O.P.No.29677 of 2022 nothing survives against petitioner/A11 and A10 in the renumbered case. Connected Miscellaneous Petitions are closed.
30.06.2023 Index: Yes/No Internet: Yes/No Neutral Citation: Yes/No Speaking Order/Non-Speaking Order vv2 To
1.The Special Metropolitan, Special Court for Land Grab Cases No.II, Egmore @ Allikulam, Chennai.
2.The Sub Inspector of Police, Chennai Crime Branch, ALGSC – I, Team XVII-A, Vepery, Chennai.
3.The Public Prosecutor, High Court, Madras.
Copy To:
The Metropolitan Magistrate for Exclusive trial of CCB (relating to cheating cases in Chennai) and CBCID Cases, Egmore, Chennai.
Page No.41 of 42 https://www.mhc.tn.gov.in/judis Crl.O.P.No.29677 of 2022 M.NIRMAL KUMAR, J.
vv2 PRE-DELIVERY ORDER IN Crl.O.P.No.29677 of 2022 30.06.2023 Page No.42 of 42 https://www.mhc.tn.gov.in/judis