Madras High Court
Unknown vs P.P.Sivaswamy on 30 November, 2021
Crl. O.P. No. 15514 of 2017
and
Crl.M.P.Nos.9691 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated 30.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
Crl. O.P. No. 15514 of 2017
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Crl.M.P.No.9691 of 2017
1.P.B.Nanjaiah Lingammal Public Charitable Trust,
Represented by its Managing Trustee N.Krishnaswamy,
No.21/1/67, Main Road, Mettupalayam 641301,
Coimbatore District.
2.N.Krishnaswamy
3.Nanjaraj Chandappa
4.Mallika Murali Babu
5.R.Murali Babu
6.G.Palaniswamy
7.Chandini Surya Kumar
8.Nandini Amar Kumar
9.Sujatha Chandappa
10.Cavery Nanjaraj
11.R.Chandrasekar
12.Vivek Chandrasekar
13.Usha Umapathi
14.Preetham Umapathi
15.Vikram Umapathi
16.Malathi Krihnaswamy
17.N.Devaraj
18.K.Keshav Raj
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19.Renuka Lakshman
20.K.Katharaj
21.M/s.Encene Aromatics Pvt.Ltd.,
Represented by its Vice Chairman Sri.N.Krishnaswamy
No.2/98-A, Vellipalaym Road,
Mettypalayam 641301, Coimbatore District.
22.M/s.Chandini and Co.
Represented by its partners
Sri.n.Krishnaswamy, Sri.C.Nanjaraj,
Smt.MAllika Muralibabu and Sri.R.Murali Babu
No.2/98-A, Vellipalaym Road,
Mettypalayam 641301, Coimbatore District.
23.M/s.Encee Granites Pvt.Ltd,
Represented by its Managing Director,
Sri R.Chandrashekar and directors,
Sri Vivekchandrasekar, Sri N.Krishnswamy,
Sri C.Nanjaraj and Smt.Mallika Murali Baby,
No.2/98-A, Vellipalaym Road,
Mettypalayam 641301, Coimbatore District.
24.G.Samminndan
25.M/s.Vanilla Resources(India) P.Ltd
Represented by Sri C.Nanjaraj, Director
No.2/98-A, Vellipalaym Road,
Mettypalayam 641301, Coimbatore District. . . . Petitioners
Versus
P.P.Sivaswamy
General Secretary of Genesisi Society
(Reg.No.80/2014),
Office at 65-A, Goplapuram,
3rd Street,
Coimbatore-641 018. . . . Respondent
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PRAYER : Criminal Original Petition filed under Section 482 Cr.P.C., to call
for the records relating to C.C. No.38 of 2017 on the file of the Judicial
Magistrate, Mettupalayam, and quash the same.
For Petitioners : Mr.N.Sridhar
for Mr.R.Bharath Kumar
For Respondent : Mr.Jayanth Balakrishna
(appeared in person)
-----
ORDER
This Criminal Original Petition has been filed to quash the proceedings
in C.C. No.38 of 2017, pending on the file of the learned Judicial Magistrate,
Mettupalayam.
2. Brief facts of the case in a nutshell are as follows:-
The learned Judicial Magistrate, Mettupalayam, took cognizance of the
private complaint filed by the respondent/Genesis Society, registered in the
year 2014. The first accused is the Trust and the other accused are trustees,
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purchasers, lessees, attestors of the documents and Bank official, who have
sanctioned the loan in respect of immovable property originally owned by the
Trust, subsequently purchased by some of the accused herein. The private
complaint was lodged, as if there were several sale deeds and lease deeds
executed among relatives, thereby, they caused breach of trust. Hence they
committed an offence punishable under Sections 107 to 109, 120B, 405, 406,
409 and other provisions of the Indian Penal Code.
3. Though the private complaint runs to about 28 pages, just like a civil
Suit, the main allegation pressed into service with regard to the sale of certain
properties, dated 21.06.1977 and 21.12.1981, and lease deeds of the years 1994
and 1996, the main contention of the learned counsel appearing for the
petitioners is that the private complaint itself is motivated and the result of a
civil litigation which went against one of the daughters of the second accused
and his son in law.
4. It is his further contention that the trust deed itself authorised by the
trustees to deal with the properties and the Civil litigations filed by the daughter
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of second accused went against her and ultimately concluded in
S.L.P.Nos.15105 and 15106 of 2018.
5. It is his further contention that the so called society has been formed
in the year 2014. The relationship between one of the daughters of the second
accused and her husband on one side and second accused on the other side was
marred due to several acrimonious litigation between daughter against father,
who is arrayed as second accused in private complaint. This prosecution itself
is the result of hatredness and rancour exhibited by daughter and son-in-law of
second accused. It is further submitted that civil litigation initiated by daughter
of second accused went upto Apex Court and dismissed not stopping with,
several petitions were filed in the form of Trust O.P before Principal District
Judge, Coimbatore which were also dismissed by Civil Court.
6. On 18.02.2010, one Jayashree Jayanth, daughter of second accused
and two others had filed Trust O.P.108 of 2010, before the Principal District
Judge, Coimbatore, for seeking removal of the respondents 2 to 4 therein, from
the office of the Trustees in P.B.Nanjaiah Lingammal Charities Trust.
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Subsequently, the above Original Petition was dismissed as not pressed on
12.02.2013 before the Principal District Judge, Coimbatore. Besides she also
filed an application along with two others, in I.A.No.2199 of 2011 in
O.S.C.F.R.No.26110 of 2011, on the file of the Principal District Judge,
Coimbatore, to grant leave to the petitioner, therein to file a suit to settle the
scheme for administration of the Trust and to remove the
respondents/defendants 2 to 6 from the office of the Trustees in the Trust, and
to appoint new trustees and directing accounts and inquiries and restraining the
respondents from interfering with the affairs of the Trust, which was also
subsequently dismissed.
7. In the meanwhile, when the matters are pending, suddenly, the
Society was formed on 11/3/2014 with its object to espouse the interest of the
Public Charitable Endowment. Thereafter, they have also filed an application
to implead as a party in the pending leave Application filed by Jayashree on
04.01.2016. Thereafter, the above applications were dismissed and impleading
application filed by the society, in I.A.No.540 of 2016 in O.S.CFR.No.26110 of
2011 was also dismissed and thereafter, leave application filed by Jayashree
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was also dismissed. Hence, it is his contention that the entire litigation is
engineered by the daughter of the second accused and her husband viz., Jayanth
Balakrishnan (Party-in-Person). Therefore, in the name of the society, now
criminal Complaint has been given by the son in law of the second accused,
who is arguing on behalf of respondent as party-in-person.
8. It is his further contention that entire compliant is motivated and
abuse of process of law and the alleged offences has not been made out. It is
only to harass the entire family members of A2 and even the bank officials are
also not spared in the complaint. When the very complaint itself is motivated
and initiated only to vindicate the personal right, the same should be quashed
by this Court.
9. To substantiate the case of the petitioners, the learned counsel
appearing for the petitioners has cited the following citations:-
1. Chairman Madappa Vs. M.N.Mahanthadevaru and Others AIR 1996
Supreme Court 878.
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2. Madhavrao Jiwaji Rao Scindia and another etc., Vs. Sambhajirao
Chadrojirao Angre and Others (AIR 1988 Supreme Court 709)
3. State of Haryana and Others Vs. Bhajan Lal and others AIR 1992
Supreme Court 604
4. Zandu Pharmaceutical Works Ltd and Others Vs. Md.Sharaful Haque
and others AIR 2005 Supreme Court 9.
5. Rajiv Thapar and Ors. Vs. Madan Lal Kapoor 2008 Cri.L.J 4788 (Del)
10. Mr.Jayanth Balakrishna, Party in Person appeared for Genesis
Society. Its main object is to espouse the cause of religious trust. One of the
aims of the society as could be seen in the bylaws reads as follows:
to undertake, establish, aid or take over any
religious or charitable institution or endowment,
temple, church, mutt etc., subject to the existing
law.
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11. Further aims of the society is to take up the functions of other
charitable trusts on as needed basis for the benefit of the public beneficiary.
For example, in the case of mis managed public trusts, Genesis Society shall
endeavour to litigate and seek direction from the Court for court supervised
administration and to establish a scheme of administration and/or removal of
Trustees. The Society shall apply to the Court seeking direction to place its key
members as trustees in the case of mismanaged trusts, for the benefit of the
public beneficiaries.
12. It is his contention that Society's aim and object is to preserve the
public trusts. There were serious mis management and the properties have
been sold contrary to the object of the trust, the respondent Society has rightly
lodged the complaint. In the instant case, properties have been sold among the
family members and thereby, offence under Sections 107 to 109, 120 (B), 405,
406 and 409 of the Indian Penal Code would be attracted. All offences are
cognizable in nature. The Court cannot interfere with the same while
exercising the same under Section 482 Cr.P.C.
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13. It is his further contention that he is also interested in litigating the
public rights interest particularly in the trust properties. Therefore it is his
contention that the allegations in the complaint has been made since the
properties have been dealt by them among the family members. Therefore, the
same cannot be quashed. Further his contention that locus standi to file
complaint or initiate criminal action is unknown to criminal jurisprudence.
Though several allegation also made in the form of written submissions, the
crux of the allegation that was able to cull out his main submission were as
above. He also relied on the following judgments.
1. Sri Mudaliambal Trust Vs. The Anna University and Ors. (2003) 4
L.W. 322.
2. The Secretary, The Coimbatore Vasavi Trust Vs. K.Karuppasamy and
Ors 2011 (3) CTC 321
3. Srinivasa Chariar Vs. Evalappa Mudaliar (AIR 1922 PC 325)
4. Satish Mehra Vs. State of N.C.T of Delhi and Ors 2013 (1) ACR 591
5. The State of Madhya Pradesh Vs. Laxmi Narayan and Ors 2019 (2)
ACR 1230
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6. Shiva Nath Prasad Vs. State of West Bengal and Ors 2006 (1) ACR
722 (SC)
7. A.R.Antulay Vs. Ramdas Sriniwas Nayak and Ors (AIR 1984 SC 718)
14. Even though the private complaint runs into 28 pages, the gist of the
allegations can be culled out as follows:-
Accused with an intention of converting the Trust properties as separate
properties have made alienations in the form of sale deeds dated 29/6/1778 and
21/2/1981. Transferees in turn sold the property to one partnership firm and
the said firm also availed Bank loan, thereby Bank officials also made as an
accused. Further allegations were made to the effect that lease deed dated
27/7/1990 was also executed in respect of partition of Trust property. Similarly
partition deed dated 27/1/2004 also deals with Trust properties. Main
allegation in the complaint is that the above transactions were done without the
permission of Court.
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15. The accused Nos.2 to 4 are the present Trustees of the first
accused/Trust. The other accused are either family members or purchasers,
attestators for Bank official etc. Though it appears to be a private complaint
dealing with the criminal aspect, the fact that the daughter has filed a suit
against her own father, which was dismissed by the trial court and the same was
confirmed by this Court in A.S.No.573 of 2011 and later, it was confirmed by
the Hon'ble Apex Court in S.L.P.No.15105 and 15106 of 2018 and the fact that
the filing of the Trust O.P.No.108 of 2010 by the wife of the party-in-person
Mr.Jayanth Balakrishnan, who represented society before this Court is not
disputed. Similarly, the filing of the impleading petitions in the Trust O.P.s by
the society is also not disputed and dismissal of all the applications is also not
disputed by other side.
16. Undisputed facts placed before the Court which was recorded in
earlier paragraph was never whispered in the criminal complaint which is the
subject matter of present quash petition. It is relevant to note that the Society
has already filed scheme suit in the year 2015. In I.A.No.224 of 2015 in
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O.S.C.F.R.No.2583 of 2015 before the Principal District Judge, Coimbatore, as
could be seen from the typed sets annexed here which is also not disputed,
same was dismissed as not pressed. Filing of the suit to frame scheme itself
suppressed in the private complaint. It is also to be noted that one another suit
filed to frame scheme was filed by Mrs.Jeyashree Jayanth, W/o.Jayanth
Balakrishnan argued was pending before Coimbatore Principal District Court in
the above proceedings. The respondent Society has filed petition in I.A.No.540
of 2016 for impleading them as parties which was dismissed by the learned
Principal District Judge after full contest on 24/4/2019. Court has recorded the
finding that above petition was filed only to drag on the petition filed by the
wife of Jayanth Balakrishnan. Thereafter, Leave Application was filed to
frame Scheme in I.A.No.2199 of 2011 in OS.C.F.R.No.26116 of 2011 was
dismissed by Principal District Judge, holding that there was a long standing
dispute between third petitioner, thereon, viz., daughter of second accused
(father) only with a view to score out her personal vengeance only above
petition has been filed. Besides, Court also recorded finding that Trust is first
accused is doing charity in consonance with the object of the Trust.
Accordingly, dismissed leave Application. The party-in-person who argued on
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behalf of the respondent Society now claims to be the President of Society and
was authorised to appear on behalf of Society. The fact remains that he is none
other than son-in-law of Managing Trustee N.Krishnasamy second accused.
Against whom his wife Jayshree Balakrishnan has filed Civil Suit as Trust O.P.,
all went against her. In fact, one such Civil Suit went upto the Hon'ble
Supreme Court in S.L.P.Nos.15105 and 15106 which were also dismissed
against her.
17. From these facts, it is very clear that the present private complaint is
the brain child of the daughter and son-in-law who lost the battle in civil
proceedings against A.2 Krishnaswamy. It is also to be noted that even
assuming that there was any violation in the administration of the Trust
property, the proper remedy is to set right the same in suit being filed under
Section 92 of the Code of Civil Procedure. Even when the suits are filed for the
interest of the Trusts, when the Court finds that such litigation is only to
vindicate the personal rights, the Court would not permit such litigation and
leave normally would be rejected on the threshold. Therefore, having lost all
the civil litigations, the respondent now wants to achieve, what could not be
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achieved in Civil Suit, by way of a criminal prosecution, by instituting the
complaint before the Magistrate Court, implicating the entire family members
even not sparing the bank officials.
18. It is relevant to note that the trust deed itself authorizes the trustees
to deal with the property and mode of sale is provided in the deed itself.
Therefore, at no stretch of imagination those sales which impugned and
challenged almost after three or four decades could be construed as an offence,
particularly, Civil Court itself recorded the finding that Trust is doing its
charitable activities in consonance with the object of the Trust.
19. Complaint runs to about several pages. The entire complaint itself
indicate that the main grievance of the parties, viz., defacto complainant is to
take over the Trust. Introducing the ingredients to fit into the offence to give
criminal colour is not an easy task to the persons who wanted to wreck
vengeance against family members due to acrimonial atmosphere prevailing
between them in view of loosing final battle over valuable immovable
properties. Merely because some clever averments have been made, so as to
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attract the criminal colour, which does not mean that such complaints should
reach its logical end and people should face the ordeal of trial and harassment
in criminal trial.
20. From the facts narrated, this Court satisfies itself that initiation of
entire prosecution is nothing but motivated and initiated only with a motive to
vindicate personal rights of daughter and son-in-law as against A.2 in that
process also the other accused made as an accused. When the entire criminal
prosecution is a result of malafide only in order to wreck vengeance on the
accused and with a view to spite him due to private and personal grudge, same
has to be nibbed in the bud.
21. In 1992 SUPP (1) SUPREME COURT CASES – 335 STATE OF
HARYANA AND OTHERS Vs. BHAJAN LAL AND OTHERS, the Hon'ble
Apex Court has set out the following guidelines for quashing the complaint.
(1) Where the allegations made in the first
information report or the complaint, even if they
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are taken at their face value and accepted in their
entirety do not prima facie constitute any offence
or make out a case against the accused.
(2) Where the allegations in the first
information report and other materials, if any,
accompanying the FIR do not disclose a
cognizable offence, justifying an investigation by
police officers under Section 156(1) of the Code
except under an order of a Magistrate within the
purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations
made in the FIR or complaint and the evidence
collected in support of the same do not disclose the
commission of any offence and make out a case
against the accused.
(4) Where, the allegations in the FIR do not
constitute a cognizable offence but constitute only
a non-cognizable offence, no investigation is
permitted by a police officer without an order of a
Magistrate as contemplated under Section 155(2)
of the Code.
(5) Where the allegations made in the FIR or
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complaint are so absurd and inherently
improbable on the basis of which no prudent
person can ever reach a just conclusion that there
is sufficient ground for proceeding against the
accused.
(6) Where there is an express legal bar
engrafted in any of the provisions of the Code or
the concerned Act (under which a criminal
proceeding is instituted) to the institution and
continuance of the proceedings and/or where there
is a specific provision in the Code or the concerned
Act, providing efficacious redress for the grievance
of the aggrieved party.
(7) Where a criminal proceeding is
manifestly attended with mala fide and/or where
the proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to private
and personal grudge.”
22. In Satish Mehru Vs. State (N.C.T of Delhi) and another 2012 (13)
SCC 614 -, the Hon'ble Apex Court in para 21 has held as follows:-
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“A Criminal trial Court cannot be allowed to
assume the character of fishing and roving enquiry. It
would not be permissible in law to permit a
prosecution to linger, limp and continue on the basis
of a mere hope and expectation that in the trial some
material may be found to implicate and the accused.
Such a course of action is not contemplated in the
system of criminal jurisprudence that has evolved by
the Courts over the years. A criminal trial, on the
contrary is contemplated only on defiinte allegation,
prima facie, establishing the commission of offence
by the accused which fact has to be proved by leading
unimpeachable and acceptable evidence in the course
of trial against accused.
23. Therefore, this Court is of the view that what could not be achieved
in civil proceedings cannot be permitted to be achieved in criminal
proceedings. If such thing is allowed, it may even amount to over turn the
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judgment of the Hon'ble Apex Court where civil litigation fought for property
reached finality.
24. From the materials available on record, this Court is also placed on
the records the conduct of party-in-person in the matter. He has filed memo
before the Court on 29/9/2021 claims to be the degree holder in L.L.M.FICA
and President of respondent Society. The tenor of language used in memo
indicate that he is bent upon making accusation against Principal District
Judge, who dismissed petition seeking leave to file suit to frame scheme.
Further written submission filed before the Court also indicate that he has
targeted predecessor Judge for his question as to the locus of party-in-person.
Similarly, he has not spared the other side lawyers who conducted all civil
litigation against his wife and made several accusations without any basis.
Tenor of language and accusation against Judges and other side lawyer is
highly deprecated. This Court hope that such thing will not recur hereafter.
25. Though several authorities have been cited by the Party-in-Person,
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much emphasis was made on the decision reported in A.R.Antulay Vs.
Ramdas Sriniwas Nayak and Ors AIR 1984 SC 718, wherein it is held that
punishment of the offender in the interest of Society being one of the objects
behind penal statutes enacted for larger good of the Society, right to initiate
proceedings cannot be whittled down, circumscribed or fettered by putting it
into a strait-jacket formula of locus standi unknown to criminal jurisprudence,
save and except specific statutory exception. Further, there is no dispute to the
proposition laid down in several authorities relied on by him before the Court.
But the fact remains that this Court satisfies itself the entire prosecution is
initiated in order to wreck vengeance against Trust member due to civil
disputes.
26. Learned Judicial Magistrate also mechanically took cognisance of
the private complaint merely on the sworn statement without application of
mind. Taking cognisance mechanically makes it clear that the learned
Magistrate abdicated his judicial duties and issued summons to all the accused
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to face the harassment and to undergo the ordeal of criminal trial.
27. In view of the above, this Criminal Original Petition is allowed.
C.C.No.38 of 2017, pending on the file of the Judicial Magistrate,
Mettupalayam, is quashed. Consequently, connected Criminal Miscellaneous
Petition is closed.
30.11.2021
Index : Yes / No
Internet: Yes
Speaking/non speaking order
psa/mvs
To
1.The Judicial Magistrate,
Mettupalayam.
2.The Public Prosecutor,
High Court, Madras 600104.
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N. SATHISH KUMAR, J
psa/mvs
Crl. O.P. No. 15514 of 2017
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30.11.2021
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