Madras High Court
)M.K.M.Mohamed Shafi vs )The State Rep. By on 27 April, 2021
CRL.OP(MD)No.13123 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 27.04.2021
(Reserved on 22.12.2020)
CORAM :
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
CRL.OP(MD)No.13123 of 2020
1)M.K.M.Mohamed Shafi
2)Ayisha Dowlath
3)Charles
4)Annamalai
5)Abdul Kareem ... Petitioners
vs.
1)The State rep. by
Inspector of Police,
District Crime Branch(ALGSC),
Tirunelveli,
Tirunelveli District.
(In Crime No.17/2016)
2)Ganapathiraman ... Respondents
Prayer : Petition filed under Section 482 of the Criminal
Procedure Code, to call for the records relating to the FIR in Crime No.
17 of 2016 on the file of 1st respondent police and quash the same as the
matter is amicably settled between the parties.
For Petitioner : Mr.P.Mohamed Nainar
For R1 : Mr.V.Neelakandan
Additional Public Prosecutor
For R2 : Mr.V.Karthik Raja
ORDER
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CRL.OP(MD)No.13123 of 2020
The present petition has been filed to call for the records relating
to the FIR in Crime No.17 of 2016 on the file of 1st respondent police and
quash the same as the matter is amicably settled between the parties.
2.The 2nd respondent/defacto complainant has lodged a complaint
against the petitioners alleging that the petitioners 1 and 2 are engaged in
a real estate business under the name and style of ''Shifa Golden City'',
Kongathanparai Village and Palayamkottai Village. The 4th petitioner has
purchased a plot bearing No.E7 to an extent of 5.5 cents from the
petitioners 1 and 2 through a registered sale deed in Document No.1181
of 2008. On the strength of the said sale deed, the 4th petitioner had
executed a general power to the 5th petitioner and subsequent to the same,
the defacto complainant has purchased the above said plot from the 5th
petitioner on 10.07.2009 vide Document No.6061 of 2009. It is
submitted that a Trust by name, ''Sanakaranarayana Swami 11th day Aadi
Thapasu Mandagapadi Utsavam Trust'' filed a suit against the
petitioners/accused and the subsequent purchasers in O.S.Nos.117/2010
and 85/2011 on the file of the 1st Additional District Court, Tirunelveli,
for declaration and for recovery of possession and also for mandatory
injunction in respect of the above property. The said suit was decreed as
prayed for in favour of the Trust. According to the 2nd
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CRL.OP(MD)No.13123 of 2020
respondent/defacto complainant, the property was sold to him without
disclosing that the property belongs to the said Trust. Hence, the
complaint. On the strength of the complaint, a case was registered in
Crime No.17 of 2016 for the offences punishable under Sections 417,
420, 506(ii) and 120(b) IPC. The petitioners were arrayed as A1 to A5.
The judgment and decree passed in the above suit is the immediate cause
of action for registration of FIR. The petitioners 1 and 2 earlier filed
Crl.O.P(MD)No.15262 of 2016 before this Court to quash the FIR. The
same was vehemently opposed by the defacto complainant/2nd respondent
and the said criminal original petition was dismissed on 16.03.2020.
3.CRL.MP(MD)Nos.6753 and 6991 of 2020 have been filed by the
proposed parties to implead themselves stating that the accused party had
entered into a criminal conspiracy and fabricated fake documents and on
the strength of those fictitious documents, had defrauded the proposed
parties and several individuals by luring them to purchase the property
and hence they should be impleaded in the above criminal original
petition. One Subbaiah also filed a petition to implead himself as the
respondent in the present criminal original petition and the said petition
is not numbered.
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CRL.OP(MD)No.13123 of 2020
4.The petitioners would submit that pending investigation, a
compromise was entered into between the petitioners and the defacto
complainant. A joint memo signed by the parties and their respective
counsels is filed before this Court to the effect that the defacto
complainant has no objection for quashing the FIR. But, it was opposed
by few others as intervenors claiming that they have also purchased plots
from the petitioners and they are also aggrieved by the judgment and
decree passed against the petitioners herein. It is pertinent to refer that
these interveners are parties to the suit and supported the case of the
petitioners in the trial court.
5.The 1st respondent police filed a status report in the above
criminal original petition and the entire report shows that there is a
bonafide civil dispute between the parties resulting in filing appeals in
A.S.Nos.84 and 85 of 2016 on the file of this Court. The
respondent/police would state that the second petition for quash of FIR
by way of compromise is not maintainable. It is another colusive attempt
by the accused and an extension of their wrongful act. The claim that the
second quash petition is filed in view of the compromise with one of the
affected persons viz., 2nd respondent/defacto complainant is misconceived
and mischievous. The respondent/police would further state that the
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CRL.OP(MD)No.13123 of 2020
accused party had fabricated title documents and has sold the property by
luring the purchasers to believe that they have valid title to execute the
sale. The accused party had cheated by forging title documents. The
respondent/police would also state that the above Trust has suffered huge
loss because of the criminal activities of the accused party. The
fraudulent act committed by the accused persons includes criminal
breach of trust, falsification of records, forgery, creating false documents
and cheating many persons including the Trust. Therefore, the complaint
cannot be quashed by way of compromise. The respondent/police would
rely on the judgment of the Hon'ble Supreme Court in the case of Gian
Singh vs. State reported in 2012 (10) SCC 303, wherein, it has been
observed that it needs no emphasis that exercise of inherent power by the
High Court would entirely depend on the facts and circumstances of each
case. It is neither permissible nor proper for the court to provide a strait-
jacket formula regualting the exercise of inherent powers under Section
482. No precise and inflexible guidelines can also be provided. Further,
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CRL.OP(MD)No.13123 of 2020
J.NISHA BANU, J.
bala
it is held that quashing of offence or criminal proceedings between an
offender and victim is not the same thing as compounding of offence.
Therefore, the second application of the petitioners/accused for quashing
the FIR by way of compromise is not maintainable.
6.In view of the status report filed by the respondent/police, this
Criminal Original Petition is dismissed.
27.04.2021
Index : Yes / No
Internet: Yes / No
bala
To
1)The Inspector of Police,
District Crime Branch(ALGSC),
Tirunelveli,
Tirunelveli District.
(In Crime No.17/2016)
2)The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
PRE-DELIVERY ORDER MADE IN
CRL.OP(MD)No.13123 of 2020
https://www.mhc.tn.gov.in/judis/
