CRL.O.P.No.22185 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14.09.2022
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
CRL.O.P.No.22185 of 2022
&
Crl.M.P.Nos.14311 & 14313 of 2022
Devaraj ... Petitioner
Vs.
1.State Rep by,
Inspector of Police,
Chennimalai Police Station,
Erode District.
2.Thangavel ... Respondents
PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C.
praying to call for the records in C.C.No.217 of 2021 before the learned
Judicial Magistrate, Perundurai and quash the same.
For Petitioner : Mr.N.R.Elango, Senior Counsel
For Mr.Aswin Prasanna
For Respondents : Mr. S.Santhosh
Government Advocate (Crl.side)
For R1
https://www.mhc.tn.gov.in/judis
Page 1 of 11
CRL.O.P.No.22185 of 2022
ORDER
This petition has been filed to call for the records in C.C.No.217 of 2021 pending on the file of learned Judicial Magistrate, Perundurai for the alleged offences under Sections 420 & 406 of IPC and to quash the same.
2. The case of the prosecution is that the petitioner is doing a real estate business and he required more investment. It is alleged that on 18.09.2009 at petitioner's house, he had informed that if the de-facto complainant invests money in real-estate, he can get large scale profit and they can share the profit out of the business. Therefore, the petitioner had given the documents (2843, 2844 and 3958 of 2008) pertaining to lands to an extent of 23.25 acres at Valliyarasal Village near Vellakoil to the de-facto complainant and got money through installments to an extent of Rs.2,24,00,000/-. It is alleged that on 18.02.2019, an agreement was entered between the petitioner and the de-facto complainant. On 11.03.2011, the petitioner executed settlement deed (Doc.No.1324 of 2011 on the file of the Vellakovil SRO) in favour of his daughter (Sangeetha) and on 11.04.2014, the petitioner executed settlement deed (Doc.No.1345 of 2014 on the file of the Vellakovil SRO) in favour of his https://www.mhc.tn.gov.in/judis Page 2 of 11 CRL.O.P.No.22185 of 2022 son (Vijaykaran) for the lands to an extent of 23.25 acres at Valliyarasal Village near Vellakovil. It is alleged that Vijaykaran (S/o Devaraj) had borrowed money from Shri Ram Transport Finance pledging those documents and cheated the petitioner to the tune of Rs.2,24,00,000/-. Hence, the complaint.
3. Mr.N.R.Elango, the learned Senior Counsel appearing for the petitioner submitted that the de-facto complainant/2nd respondent lodged a complaint on 30.08.2017 before the Superintendent of Police, Erode and the same was forwarded to District Crime Branch, Erode for investigation and after detailed enquiry, the District Crime Branch Police had closed the complaint for the reason that the entire allegations are civil in nature. They also submitted a closure report dated 31.05.2018. With the very same set of allegations, the 2nd complaint has been lodged by the 2nd respondent on 28.12.2018 suppressing the earlier complaint dated 30.08.2017, which was forwarded to the 1st respondent and the same has been registered in Crime No.19 of 2019 on 19.01.2019 for the offences under Sections 120B, 420 and 406 of IPC. In fact, in the earlier complaint, the petitioner was compelled to execute an agreement dated 31.08.2017. That apart, the 2nd respondent is so far involved in 5 previous cases and he has very bad antecedents. He would https://www.mhc.tn.gov.in/judis Page 3 of 11 CRL.O.P.No.22185 of 2022 further submit that the transactions between the petitioner and the 2nd respondent is only a loan transaction and as such, no offence is made out under Sections 420 and 406 of IPC and the petitioner never had any intention to cheat the 2nd respondent, since it is a loan transaction between them. Further, he vehemently contends that the complaint itself is barred by limitation since it was lodged after several years. In support of his contention, he relied upon the judgment of the Hon'ble Supreme Court of India in Vijay Kumar Ghai V. State of W.B., (2022) 7 SCC 124. However, the Hon'ble Supreme Court of India held that with the ingredients of the Sections 406 and 420 of IPC, it is imperative on the part of the complainant to prima facie establish that there was an intention on part of the petitioner and/or others to cheat and/or to defraud the complainant right from the inception. Furthermore, it has to be prima-facie established that due to such alleged act of cheating the complainant had suffered a wrongful loss and same had resulted in wrongful gain for the accused. In the absence of these elements, no proceedings is permissible in the eye of law with regard to the commission of the offence punishable under Section 420 of IPC. Further held that, complaint was lodged at a very belated stage with the objective of causing harassment to the petitioner and is bereft of any truth whatsoever. https://www.mhc.tn.gov.in/judis Page 4 of 11 CRL.O.P.No.22185 of 2022
4. Heard Mr. N.R.Elango, learned Senior Counsel appearing for the petitioner and Mr.S.Santhosh, learned Government Advocate (Crl.side) appearing for the first respondent.
5. It is relevant to rely upon the judgment of the Hon'ble Supreme Court of India passed in Crl.A.No.579 of 2019 dated 02.04.2019 in the case of Devendra Prasad Singh Vs. State of Bihar & Anr., as follows:-
" 12.So far as the second ground is concerned, we are of the view that the High Court while hearing the application under Section 482 of the Cr.P.C. had no jurisdiction to appreciate the statement of the witnesses and record a finding that there were inconsistencies in their statements and, therefore, there was no prima facie case made out against respondent No.2. In our view, this could be done only in the trial while deciding the issues on the merits or/and by the Appellate Court while deciding the appeal arising out of the final order passed by the Trial Court but not in Section 482 Cr.P.C. proceedings.
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13.In view of the foregoing discussion, we allow the appeal, set aside the impugned order and restore the aforementioned complaint case to its original file for being proceeded with on merits in accordance with law.
6. Recently, the Hon'ble Supreme Court of India dealing in respect of the very same issue in Crl.A.No.1572 of 2019 dated 17.10.2019 in the case of Central Bureau of Invstigation Vs. Arvind Khanna, wherein, it has been held as follows:
“19. After perusing the impugned order and on hearing the submissions made by the learned senior counsels on both sides, we are of the view that the impugned order passed by the High Court is not sustainable. In a petition filed under Section 482 of Cr.P.C., the High Court has recorded findings on several disputed facts and allowed the petition.
Defence of the accused is to be tested after appreciating the evidence during trial. The very fact that the High Court, in this case, went into the most minute details, on the allegations made by the appellant-C.B.I., and the defence put-forth by the respondent, led us to a conclusion that the High Court has exceeded its power, while exercising its https://www.mhc.tn.gov.in/judis Page 6 of 11 CRL.O.P.No.22185 of 2022 inherent jurisdiction under Section 482 Cr.P.C.
20.In our view, the assessment made by the High Court at this stage, when the matter has been taken cognizance by the Competent Court, is completely incorrect and uncalled for.”
7. Further the Hon'ble Supreme Court of India also held in the order dated 02.12.2019 in Crl.A.No.1817 of 2019 in the case of M.Jayanthi Vs. K.R.Meenakshi & anr, as follows:
"9. It is too late in the day to seek reference to any authority for the proposition that while invoking the power under Section 482 Cr.P.C for quashing a complaint or a charge, the Court should not embark upon an enquiry into the validity of the evidence available. All that the Court should see is as to whether there are allegations in the complaint which form the basis for the ingredients that constitute certain offences complained of. The Court may also be entitled to see (i) whether the preconditions requisite for taking cognizance have been complied with or not; and (ii) whether the allegations contained in the complaint, even if accepted in entirety, would not constitute the offence alleged.
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13. A look at the complaint filed by the appellant would show that the appellant had incorporated the ingredients necessary for prosecuting the respondents for the offences alleged. The question whether the appellant will be able to prove the allegations in a manner known to law would arise only at a later stage...................." The above judgments are squarely applicable to this case and as such, the points raised by the petitioner cannot be considered by this Court under Section 482 Cr.P.C.
8. On perusal of records, it revealed that, on 18.09.2009, the petitioner informed the de-facto complainant to invest money in real estate business and he can get large scale profit. In order to receive a sum of Rs.2,24,00,000/- from the 2nd respondent, for the security purpose, the petitioner executed an agreement in respect of property registered by Doc.Nos.2843, 2844 and 3958 of 2008 to an extent of 23.25 Acres. Thereafter, the petitioner received huge sums from the de-facto complainant on the very same strength of the assurance. Again on 31.08.2017, the petitioner assured that he shall repay the amount to the tune of Rs.1,90,00,000/- to the de-facto https://www.mhc.tn.gov.in/judis Page 8 of 11 CRL.O.P.No.22185 of 2022 complainant/2nd respondent. Thereafter, the 2nd respondent came to understand that already a part of the said property was settled by the petitioner in favour of his daughter by settlement deed dated 11.03.2011 registered by Doc.No.1324 of 2011. Remaining property has also been settled in favour of his son on 11.04.2014 registered by Doc.No.1345 of 2014. Thereby, the petitioner cheated the de-facto complainant/2nd respondent to the tune of Rs.2,24,00,000/-. As far as the 1st complaint of the 2nd respondent is concerned, it was already enquired, both the petitioner and the 2nd respondent entered into an agreement and on the strength of the agreement, it was closed. However, the petitioner failed to keep up his words and failed to settle the said amount. It was executed by suppressing the settlement deeds in favour of his son and daughter. Therefore, it is a clear case of cheating and there are ingredients to make out prima-facie case for the offences under Sections 406 and 420 of IPC as against the petitioner in this regard.
10. In view of the above discussion, this Court is not inclined to quash the proceedings in C.C.No.217 of 2021 in Crime No.19 of 2019 on the file of the learned Judicial Magistrate, Perundurai. The petitioner is at liberty to raise all the grounds before the trial Court. https://www.mhc.tn.gov.in/judis Page 9 of 11 CRL.O.P.No.22185 of 2022
11. Accordingly, this criminal original petition is dismissed. Consequently, connected miscellaneous petition are also closed.
14.09.2022 Index : Yes / No Speaking / Non Speaking order mpl https://www.mhc.tn.gov.in/judis Page 10 of 11 CRL.O.P.No.22185 of 2022 G.K.ILANTHIRAIYAN, J.
mpl To
1.The Inspector of Police, Chennimalai Police Station, Erode District.
2.The Public Prosecutor, High Court, Madras.
CRL.O.P.No.22185 of 2022 & Crl.M.P.Nos.14311 & 14313 of 2022 14.09.2022 https://www.mhc.tn.gov.in/judis Page 11 of 11