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Showing contexts for: tos in A.L. Narasimhan vs A.S. Santhanam on 16 December, 2021Matching Fragments
This Criminal Original Petition has been filed seeking to quash the proceeding in C.C.No.2141 of 2016 on the file of XVIII Metropolitan Magistrate, Saidapet, Chennai-15.
https://www.mhc.tn.gov.in/judis
2. The case of the respondent/complainant is that the accused 1, 3, 4 and 5 are the younger brothers of the complainant and the second accused is the wife of the first accused. According to the complainant, in the year 1957, the complainant's father had purchased the immovable property in Door No.36/53, Rajunaicken Street, West Mambalam, Madras- 600 033 and another property in Old No.15, Aryagowder Road, West Mambalam, Chennai - 600 033. But those properties were purchased in the name of the mother of the complainant. Thereafter, the complainant's father made a registered settlement deed dated 24.03.2003 at Old No.36, Rajunaicken Street, West Mambalam, Chennai-600 033 in favour of the petitioner's mother and also petitioner's brothers namely A.Rajagopalan, A.Mukundan under the condition that the two brothers should take care of the retarded son Mr.A.Rangaraghavan till his death. Subsequently, the petitioner's mother also made an unregistered Will dated 12.12.2002 bequathing the property at Old No.15, Aryagowder Road, West Mambalam, Chennai-600 033, in favour of the above said two brothers on the same condition. In the meanwhile, the petitioner's brothers had filed the original petition No.274 of 2008 for probate and the said OP was converted into TOS No.29 of 2009 and the same is pending before this Court. In the said proceedings, the respondent/complainant herein stated https://www.mhc.tn.gov.in/judis that the WILL as well as the settlement deed executed by the parents are genuine and the petitioner also had not disputed the WILL and the said settlement deed. In 2006, one of the petitioner's brother namely Mr.A.Vijaya Sarathy filed a Civil Suit in C.S.No.340 of 2006 seeking partition of the above said properties. In the suit, the respondent/ complainant was arrayed as first defendant. Therefore, the complainant is well aware in the year 2006 that there is a settlement deed and the WILL executed by the petitioner's parents in favour of the above said two brothers. Apart from the above proceedings, the respondent/complainant herein filed two suits before this Court in C.S.No. 404 of 2013 and C.S.No.592 of 2013 for declaration and the same were pending for adjudication. While so, the respondent/Complainant herein filed the above criminal complaint on the allegations that his brothers, who are accused in the complaint colluded, fabricated and forged the settlement deed as well as the WILL which are the subject matter of the above pending suits before this Court. Therefore, it is alleged that they have committed the alleged offences under Sections 463, 464, 467, 471, 209, 210 199 and 200 IPC. The averments in the complaint are nothing but false. The entire averments in the complaint are already reiterated in the civil suits filed by the respondent/complainant and the complainant has not made out any https://www.mhc.tn.gov.in/judis case against the petitioner. The complaint is a clear abuse of process of law intended to harass the petitioner. The averments in the complaint are disputes which are exclusively triable by a Civil Court. Earlier, the respondent/ complainant herein filed a criminal complaint before the Inspector of Police, Ashok Nagar Police Station against the petitioner and others on the same set of facts. The Inspector of Police enquired into the matter and closed the complaint on the ground that no case is made out against the petitioner and others. In spite of the same, the present complaint has been filed with the same set of facts. Hence, the petitioner is constrained to file this petition to quash the above compliant in C.C.No.2141 of 2016 pending on the file of XVIII Metropolitan Magistrate, Saidapet, Chennai-600 015.
4. He further submitted that even though the respondent/complainant is well aware that the WILL was executed in the year 2002 as well as the settlement deed executed in the year 2003 as also the partition suit in C.S.No.340 of 2006 and the TOS pending from the year 2009, he has filed the instant complaint in the year 2016 after a period of more than 10 years and therefore the complaint is barred by limitation. In the decision of the Honourable Supreme Court in (2011) 7 SCC 59 it was held that it is necessary to draw a distinction between civil wrong and criminal wrong and hence, the appellant cannot be allowed to be subjected to rigmarole of criminal prosecution for long number of years, even when admittedly a civil suit has already been filed and is still sub- judice. The learned counsel for the petitioner also submitted that the petitioner is a Chartered Accountant and having many clients and in view of the false complaint filed by the complainant, he is made to appear before the concerned Court and it has affected his professional duties very much. Hence, he prayed the above complaint is liable to be quashed. https://www.mhc.tn.gov.in/judis
https://www.mhc.tn.gov.in/judis
8. It is seen from the records that the complainant was appointed as Receiver by this Court in C.S.No.340 of 2006 and the respondent/complainant came to know about the existence of a forged and fabricated Will alleged to have been executed by the complainant's mother A.Kamala on 12.12.2002. Thereafter, O.P.No.274 of 2008 was filed on the basis of the forged and fabricated Will was served. There were caveats and affidavit of protest filed by the complainant in the same O.P.No.274 of 2008 but the complainant was not made a defendant in O.P.No.274 of 2008, which made the proceedings to be converted into a Testamentary Original Suit in TOS.No.29 of 2009 before this Court and the complainant was impleaded as 2nd defendant in Appln.No.5059 of 2011 on 10.11.2011. Thus, it is clear that there is a legal bar to the complainant under Section 195(1) (b) CrPC., 1973 from prosecuting the accused for the offences of Forgery and cheating since in this case the alleged forged documents were used in judicial proceeding in TOS.No. 29 of 2009.
9. The learned counsel for the respondent/complainant contended that he had filed an application under the provisions of RTI Act, 2005, obtained information as to the fact that the deceased A.Kamala had not furnished accounts for purchasing Non Judicial Stamps and therefore, https://www.mhc.tn.gov.in/judis the alleged Will of A.Kamala was proved to be a forged document. When the accused 1&2 represented before this Court in TOS.No.29 of 2009, as if they were executors on the basis of the forged and fabricated will of deceased A.Kamala, they committed the offence of impersonation, punishable under Section 419 IPC. It is also alleged that the accused 1 to 5 joined together in order to make false representation as if there was a Will of the deceased A. Kamala dated 12.12.2002 and the same is a false and forged Will of deceased, thereby, misappropriated the immovable property in its entirety, and the rent advance from the tenants in possession therein, from 15.09.2005 to till date to the tune of Rs.1,51,50,000/- thereby causing wrongful loss to the complainant and wrongful gain to themselves. Thus, it is stated that the accused 1 to 5 have jointly committed the offence of cheating punishable under Section 420 IPC. After the demise of his mother viz., A.Kamala, being the mother of the complainant, 1/5th of the equal amount is owned by the complainant, which was not paid to him. Hence, it is complained that the accused 1 to 5 have committed the offence of criminal misappropriation punishable under Section 406 IPC to the total amount of Rs.44,16,000/- for which the accused are liable to be punished for the same. Further, it is alleged that the accused 1 to 5 have joined together and conspired in each and every act https://www.mhc.tn.gov.in/judis to commit the offences of cheating, committed the offence of impersonation as if they were executors under forged and fabricated will of deceased A.Kamala and jointly conspired to commit misappropriation of the complainant's father's movables to the value of Rs.44,16,000/- and thereby committed the punishable offence under Section 120B (2) IPC and they have committed all the aforesaid offences with the common intention of cheating, impersonation, criminal misappropriation of the amounts owned by the complainant and jointly criminally conspired to commit those offences and therefore, the accused 1 to 5 are to be punished under Section 34 IPC and the same is liable to be quashed.