Madras High Court
Nataraja Rediyar vs K.Muthu on 27 January, 2021
Crl.O.P.(MD)No.7958 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE ON WHICH RESERVED : 27.01.2021
DATE ON WHICH PRONOUNCED : 22.02.2021
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.O.P.(MD)No.7958 of 2017
and
Crl.MP(MD)No.5417 of 2017
1.Nataraja Rediyar
2.K.Lingasamy ... Petitioner/Accused Nos.2 & 3
Vs.
K.Muthu ... Respondent/Complainant
Prayer:Criminal Original Petition filed under Section 482 Cr.P.C., to call
for the records in C.C.No.43 of 2015 on the file of the Judicial Magistrate,
No.I, Tuticorin, now transferred to Judicial Magistrate No.III, Tuticorin in
C.C.No.1015 of 2017 on the file of the learned Judicial Magistrate III,
Tuticorin and quash the same as against these petitioners/accused.
For Petitioners : Mr.KA.Raamakrishnan
Mr.T.Antony Arul Raj
For Respondent : Mr.A.Thiruvadi Kumar
1/12
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Crl.O.P.(MD)No.7958 of 2017
ORDER
This Criminal Original Petition has been filed to quash the
proceedings in C.C.No.43 of 2015 on the file of the judicial Magistrate,
No.I, Tuticorin, now, transferred to Judicial Magistrate No.III, Tuticorin in
C.C.No.1015 of 2017, on the file of the learned Judicial Magistrate III,
Tuticorin, so far as the petitioners are concerned.
2.The brief facts of the case is as follows:-
(i) The respondent and his brother namely Senraj, were jointly
enjoying the property comprised in S.No.116/2 situated in Silukanpatti
Village, Pudukkottai. On 02.11.2012, the said Senraj, sold the above said
property by including the name of the complainant to one Balamurugan,
Chemicals Pvt Ltd through a registered sale deed. The defacto complainant
filed a complaint before the Pudukkottai Police Station, Tuticorin and there
was no action. So, he filed a private complaint before the learned Judicial
Magistrate, Tuticorin in Cr.MP.No.977/2013 under Section 156 (3) Cr.P.C
for a direction. But, it was dismissed on 18.02.2013, holding that it is a civil
dispute and thereafter, the respondent filed a revision before this Court, in
Crl.RC.No.240/2013. It was also dismissed on 11.01.2014. But, however,
liberty was given to file a private complaint.
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Crl.O.P.(MD)No.7958 of 2017
(ii) In pursuant to the same, the respondent filed a private complaint
before the learned Judicial Magistrate No.I, Tuticorin and the same was
taken cognizance in C.C.No.43 of 2015, for the punishable offences under
Sections 417, 419, 420, 468, 471, 120 (b) and 506 (i) IPC and later, it was
transferred to learned Judicial Magistrate III, Tuticorin, and renumbered as
C.C.No.1015 of 2017.
(iii).In this case, the petitioners are arrayed as accused Nos. 2 and 3
respectively. Seeking quashment of the charge sheet, this criminal original
petition is filed.
3. As narrated in the preamble portion, it is seen that there is a dispute
between two brothers regarding the property comprised in S.No.116/2
situated in Silukanpatti Village. According to the defacto complainant, his
own brother namely, Senraj sold the property to the first accused by
including his name by forging and impersonation. For that purpose,
according to the defacto complainant, these petitioners were also colluding,
abetting and entered into a conspiracy.
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Crl.O.P.(MD)No.7958 of 2017
4. During the arguments, much argument was advanced on the point
whether the present complaint is the second complaint filed by the
complainant on the very same set of facts, with that of the petition filed by
him under Section 156 (3) of the Cr.P.C, which ended in dismissal and also
confirmed by this Court in Cr.RC(MD)No.240 of 2013. As mentioned in the
preamble portion, liberty was granted to the defacto complainant to file a
private complaint if so advised. According to him, since liberty was granted
to him, he filed a private complaint, which is legal.
5. According to the learned counsel for the petitioner, this has to be
construed only as a second complaint, which is not maintainable unless and
until new set of facts and materials are placed before the Court. According
to him, this complaint is a verbatim reproduction of the earlier petition filed
under Section 156 (3) of Cr.PC and so, it has to be construed as a second
complaint and for that purpose, he would also say that the petition under
Section 156 (3) of Cr.PC must also be construed as a complaint and not an
information. But I am going into those aspects for deciding this petition, for
the simple reason that the petitioners are the third parties, not only to the
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Crl.O.P.(MD)No.7958 of 2017
complainant and his brother, but, as well as to the property, which was
alleged to have been sold by the first accused in the case. As mentioned
earlier, the only allegation that has been made by the defacto complainant
against the petitioners is that they are party to the conspiracy. Perusal of the
complaint shows that specific allegations that has been levelled against the
petitioners are that these petitioners and other accused before the Court,
acted in collusion with the first accused in order to cheat him. In the sworn
statement also, he repeated the same allegation.
6. According to the learned counsel for the petitioner, these
allegations do not attract the ingredients under Section 120 (b) of IPC. In
the absence of any prima facie materials before the Trial Court, the
complaint is liable to be quashed.
7. Per contra, it is the contention on the part of the respondent that it
is only a matter of evidence since it is a warrant procedure, the petitioners
will be given an opportunity to cross examine the witnesses even before
framing of charges. So, at that time, they can very well raise those defence,
which are available to them and this is a very nascent stage of the enquiry
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Crl.O.P.(MD)No.7958 of 2017
and so, the Court cannot expect the offence to be either set out in the
complaint or in the sworn statement. Evidence with regard to the conspiracy
can be let in only during the course of recording the evidence, before
framing of charge. So, the point, which the counsel for the respondent wish
to bring home is that only at the time of framing the charges, the
involvement of the petitioners can be found out and this is not the stage. No
doubt, that the petitioners can be given chance to cross examine the
witnesses before framing of charge. But, the fact remains that basic
ingredients as well as the materials must be placed along with the
complaint. The Trial Court after recording the sworn statement of the
defacto complainant, chose, not to record the statement of the further
witnesses. But, took cognizance of the offence and chose to issue summons
to the accused persons.
8. Para 4 of the complaint reads as under:-
“On 01.11.2012, the first accused, without
knowledge of the complainant, sold the property in S.No.
116/2, Patta No.94, to the 7th accused before the 8th
accused. The first accused included the name of the
petitioner and cheated him. Accused Nos.5 and 6 signed
as witnesses in the document. Accused Nos.2 to 8 colluded
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Crl.O.P.(MD)No.7958 of 2017
with the first accused for cheating. The 8th accused
registered the document in the name of the first accused
without any document in collusion with the accused Nos.1
to 7.”
- This is the allegation made by the complaint, against these
petitioners and others. The second allegation is that on 25.12.2012, the
second accused and other accused threatened him that they will kill him.
9. The learned counsel for the petitioners would rely upon the
following judgments:-
i) Ramesh Rajagopal Vs Devi Polymers Private Limited (2016) 6
SCC 310
ii) L.Murali & Another Vs State Rep, by the Inspector of Police,
Karur and Another CDJ 2018 MHC 7110
iii) P.Venkatesh & Others Vs State Rep by the Inspector of
Police, Central Crime Branch, Egmore, Chennai and Another
iv) S.W.Palanitkar and Others Vs State of Bihar and Another
2001 (4) Suppl. SCR 397 (Appeal (Crl.) 1072 of 2001.
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Crl.O.P.(MD)No.7958 of 2017
10. In the above judgments, the following principles have been laid
down:-
“In all the cases the principle that the accused
must be relieved from the prosecution, even if the
allegations are taken at their face value and accepted
in prosecution.”
11. With regard to cheating, the following principle has been
enunciated:-
“14.An offence of cheating cannot be said to have
been made out unless the following ingredients are
satisfied:
“(i) deception of a person either by making a
false or misleading representation or by other action or
omission;
(ii)fraudulently or dishonestly inducing any
person to deliver any property; or to consent that any
person shall retain any property and finally
intentionally inducing that person to do or omit to do
anything which he would not do or omit.”
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Crl.O.P.(MD)No.7958 of 2017
12. According to the learned counsel for the respondent, the entire
occurrence took place as an off shoot of a larger conspiracy, which can be
proved only during the trial and direct evidence cannot be made available
and it has to be gathered only from available circumstances. The petitioners
are relatives to the defacto complainant and the first accused and inspite of
having the knowledge, they colluded with the first accused to cause
unlawful loss.
13. In the light of the rival submissions, the respondent would also
rely upon the decision of the Hon'ble Supreme Court rendered in Skoda
Auto Volkswagen India Pvt., Ltd., Vs State of Uttar Pradesh in SLP
Crl.4931 of 2021. In the above said judgment, it has been observed that it is
not permissible to make an enquiry as to the reliability or otherwise of the
allegations made in the First Information Report or in the complaint. It is
further observed that the proceedings ought not to be scuttled at initial stage
and quashing of the complaint and FIR, should be an exception and rarity.
14. According to the learned counsel for the respondent, this Court
must adopt the procedure that has been stated by the Hon'ble Supreme Court
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Crl.O.P.(MD)No.7958 of 2017
(cited supra). It is no doubt, this is a basic principle with regard to the
quashment of either First Information Report or complaint. It will amount to
killing the unborn child. This is the basic principle that must be kept in
mind. But, it also a basic principle that materials must be placed before the
Court for proceeding. In the case of R.B.Kapoor Vs State of Uttar
Pradesh AIR 1960 SC 866, it has been observed that when the allegation in
the First Information Report or in the complaint taken in their face value
and accepted in their entirety do not constitute the offence as alleged, the
powers under Section 482 of Cr.P.C can be exercised. This is one of the
three grounds mentioned by the Hon'ble Supreme Court. The petitioners
want to rely upon this ground to make a case for quashment.
15. As I mentioned earlier, bald allegation, without any further
particulars has been made by the respondent in the private complaint, in
what way the petitioners conspired or colluded or abetted the commission of
the alleged offences by his brother namely, the first accused is not
mentioned. No materials were also placed before the Trial Court. So, I am of
the considered view that the continuation of the proceedings against these
petitioners will amount to abuse of process of the Court. In the facts and
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Crl.O.P.(MD)No.7958 of 2017
circumstances of the case, I am of the considered view that this is the fittest
case warranting interference of this Court by exercising the power under
Section 482 Cr.P.C to quash the complaint against the petitioners.
16. In the result, this Criminal Original Petition is allowed and the
complaint filed by the respondent against these petitioners is quashed. The
trial may proceed against the rest of the accused as per law without being
influenced in anyway by any of the observations of this Court. It is also
made clear that the observations are made for the limited purpose of
disposing this petition. Consequently, connected miscellaneous petition is
closed.
22.02.2021
Internet:Yes
Index:Yes/No
Speaking order/Non-Speaking order
dss
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Crl.O.P.(MD)No.7958 of 2017
G.ILANGOVAN,J.,
dss
Note: In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for official
purposes, but, ensuring that the copy of the order that is
presented is the correct copy, shall be the responsibility of the
advocate/litigant concerned.
To
1.The Judicial Magistrate, No.I,
Tuticorin.
2.The Judicial Magistrate III,
Tuticorin.
Crl.O.P.(MD)No.7958 of 2017
and
Crl.MP(MD)No.5417 of 2017
22.02.2021
http://www.judis.nic.in
