Madras High Court
Guruvareddy vs The State Represented By on 6 April, 2022
Crl.O.P.(MD)No.697 of 2022
BEFORE THE MADURAI BENGH OF MADRAS HIGH COURT
DATED: 06.04.2022
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.(MD)No.697 of 2022
and
Crl.M.P(MD)No.514 of 2022
1.Guruvareddy
2.Balagur
3.Indira Gandhi ... Petitioners/Accused Nos.1 to 3
Vs.
1.The State represented by,
The Inspector of Police,
District Crime Branch
Madurai.
(Crime No.35 of 2021). ... 1st Respondent/Complainant
2.Radhakrishnan ... 2nd Respondent/
Defacto complainant
Prayer: Criminal Original Petition filed under Section 482 Cr.P.C., to
call for the records pertaining to the FIR in Crime No.35 of 2021 on
the file of the Inspector of Police, District Crime Branch, Madurai
and quash the same.
For Petitioner : Mr.C.Emalias
for Mr.A.Robinson
For R – 1 : Mr.B.Thanga Aravindh
Government Advocate (Crl. Side)
For R – 2 : Mr.S.Vellaichamy
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Crl.O.P.(MD)No.697 of 2022
ORDER
This Criminal Original Petition has been filed to quash the FIR
registered in Crime No.35 of 2021 for the offences under Sections
120(b), 406 and 420 of I.P.C on the file of the first respondent.
2.The second respondent lodged a complaint alleging that he
wish to purchase a property situated at Tiruppur for the total sale
consideration of Rs.1 crore and approached one Jeyalakshmi and
Balamurali and availed a loan for a sum of Rs.1 crore, for which he
had executed a sale deed in favour of the said Jeyalakshmi and
Balamurali with an understanding that the property in which the
sale deed was executed shall be re-conveyed in favour of the
second respondent as and when the loan amount is settled.
Accordingly, the sale deed was executed and registered vide
Document No.1474 of 2016 in favour of the said Jeyalakshmi and
Balamurali on 29.08.2016 in respect of the property comprised in
Survey No.14/2B2A admeasuring 3.40 acres out of which an extent
of 1.70 acres land belonged to the second respondent. Further,
alleged that within a period of one year, the said Jeyalakshmi and
Balamurali demanded refund of the said amount together with
interest to the tune of Rs.1.70 crores. In order to settle the loan
amount, the second respondent approached the first petitioner and
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Crl.O.P.(MD)No.697 of 2022
he also agreed to execute another deed and availed loan to the tune
of Rs.1.70 crores. In the said arrangement, the said Jeyalakshmi
and Balamurali had executed reconveyance sale deed in favour of
the third petitioner vide Document No.1386 of 2017, dated
22.09.2017. Further, the second respondent also availed loan to the
tune of Rs.30 lakhs from the first petitioner for which the second
respondent executed another sale deed in respect of the property
comprised in Survey No.120/3 to an extent of 65 cents, Survey No.
9/2A to an extent of 1A 19 cents, Survey No.10/1 to an extent of 77
cents, Survey No.10/5B 1B to an extent of 33 cents, Survey No.
11/1 to an extent of 94 cents, Survey No.12/1 to an extent of 77
cents and Survey No.16/1A to an extent of 87 cents totally 5 acres
27 cents by the registered sale deed, dated 23.01.2017. Further,
alleged that the sister's son of the second respondent borrowed
another sum of Rs.60 lakhs from the first petitioner and he
executed separate sale deed in respect of the some other property
belonged to him. In turn, the third petitioner executed settlement
deed in respect of the property comprised in Survey No.14/ 2B2A in
favour of the second petitioner vide Document No.713 of 2020,
dated 11.05.2020.
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Crl.O.P.(MD)No.697 of 2022
3.It is also seen that the petitioners have established a petrol
bunk in the said property. The second respondent through his son
and daughter filed two suits in respect of the very same property for
partition and declaration to declare that the sale deeds executed in
favour of the second petitioner and the third petitioner are null and
void. Thereafter, when the second respondent approached the
petitioners and agreed to repay the loan amount which was
borrowed by them on the basis of the understanding, the petitioners
refused to reconvey the property in favour of the second
respondent. The entire transaction was taken place during the year
2017. The said sale deeds were all duly executed by the said
Jeyalakshmi and Balamurali in favour of the third petitioner and
even before execution of the sale deed, the revenue records were
mutated in the name of the vendors namely Jeyalakshmi and
Balamurali. In fact, joint patta was issued in favour of them jointly
along with the property of the second respondent in respect of other
remaining properties. After execution of sale deeds in favour of the
petitioners, all the revenue records were mutated and patta was
also issued in their favour.
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Crl.O.P.(MD)No.697 of 2022
4.It is also seen that already the second respondent lodged
complaint with similar set of allegations to the Inspector General of
Police, South Zone, Madurai and the same has been forwarded to
the Inspector of Police, Vadipatti Police Station. On receipt of the
same, the Inspector of Police, Vadipatti Police Station issued
summons on 30.06.2021 to the petitioners and the second
respondent for enquiry on 05.07.2021. Both were appeared for
enquiry and after detailed enquiry found that the entire dispute is
money transaction and the execution of sale deeds etc., which is
entirely civil matter and as such, directed the parties concerned to
approach the competent civil Court for appropriate relief and closed
the complaint. Thus, a civil dispute has been given criminal colour
and the first respondent registered the present F.I.R, that too, on
the direction of the higher officials. That apart, the petitioners have
already constructed a pertol bunk in the said property and having
been developed animosity and to grab much more money from the
petitioners with oblique motive, the present F.I.R has been filed as
against the petitioners.
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Crl.O.P.(MD)No.697 of 2022
5.Admittedly, the second respondent received huge sum and
thereafter executed sale deed in favour of the said Jeyalakshmi and
Balamurali. In turn, the said Jeyalakshmi and Balamurali sold out
the property in favour of the third petitioner.
6.Though the learned counsel appearing for the second
respondent submitted that the sale deeds were executed of threat
and coercion at the time of borrowal of loan, immediately after
execution of sale deed, the second respondent did not take any
steps to lodge complaint on the allegation that he was coerced and
compelled to execute those sale deeds. After execution of sale
deeds, only in the year 2021, the second respondent lodged the
complaint and in fact, the first complaint was duly enquired and
closed as all the allegations are civil in nature.
7.Further, though the second respondent alleged that at the
time of borrowal of loan for security purpose those sale deeds were
executed and agreed to reconvey the property whenever the loan
amount returned to them, there is no recital to that extent in the
sale deeds. It shows that after execution of sale deed, due to
exclamation of price of the property, the complaint has been now
lodged against the petitioners. That apart, the portion of the
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Crl.O.P.(MD)No.697 of 2022
property directly purchased from the second respondent and major
extent of the property was purchased from the said Jeyalakshmi and
Balamurali.
8.The case of the second respondent is that the said
Jeyalakshmi and Balamurali while lending loan, for security purpose,
executed the sale deed in their favour and agreed to reconvey the
said property on repayment of entire loan amount. Even then, there
is no allegation as against them and no F.I.R has been registered
against them. The son of the second respondent already filed a suit
in O.S.No.167 of 2021 on the file of the First Additional District
Court, Madurai for partition in respect of very same property along
with other property. The daughter of the second respondent also
filed another suit in O.S.No.234 of 2021 on the file of the IV
Additional District Court, Madurai for declaration declaring that the
above sale deeds executed in favour of the second petitioner and
third petitioner as null and void and also seeking for injunction
restraining the petitioners from operating the petrol bunk. After the
suits, the present complaint has been lodged by the second
respondent.
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Crl.O.P.(MD)No.697 of 2022
9.Heard the learned counsel appearing for the petitioners, the
learned Government Advocate (Criminal Side) appearing for the first
respondent and the learned counsel appearing for the second
respondent and perused the entire materials available on record.
10.The Honourable Supreme Court of India in the case of
M/s. Indian Oil Corporation Vs. NEPC India Limited and
others [(2006) 6 SCC 736], held that the civil liability cannot be
converted into criminal liability and held and as under while on this
issue, it is necessary to take notice of a growing tendency in
business circle to convert purely civil dispute in criminal case. This is
obviously on account of prevalent impression that civil law remedies
are time consuming and do not adequately protect the interest of
lender/creditors. Such a tendency is seen in several family disputes
also, leading to irretrievable breakdown of marriages/families. There
is also an impression that if a person could somehow be entangled
in a criminal prosecution, there is a likelihood of imminent
settlement. Any effort to settle civil disputes and claim which do not
involve any criminal offence by applying pressure through criminal
prosecution should be deprecated and dishonoured.
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Crl.O.P.(MD)No.697 of 2022
11.In the case of G.Sagar Suri Vs. State of Uttar Pradesh
[2000 (2) SCC 636], the Honourable Supreme Court of India held
as follows:-
“It is to be seen if a matter, which is
essentially of civil nature, has been given a cloak
of criminal offence, criminal proceedings are not a
short cut of other remedies available in law. Before
issuing process a criminal Court has to exercise a
great deal of caution. For the accused it is a
serious matter. This Court has laid certain
principles on the basis of which High Court is to
exercise its jurisdiction under Section 482 of the
Code. Jurisdiction under this Section has to be
exercised to prevent abuse of the process of any
Court or otherwise to secure the ends of justice.”
12.It is seen from the F.I.R that there is absolutely no piece of
material has been found that the petitioners committed the offences
under Sections 120(b), 406 and 420 of I.P.C., Where the ingredients
required to constitute a criminal offence are not made out from a
bare reading of the complaint/F.I.R, the continuation of the
proceeding will constitute an abuse of the process of the Court.
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Crl.O.P.(MD)No.697 of 2022
13.In order to ascertain the veracity and contentions made by
the parties herein, it is imperative to examine whether the relevant
ingredients of offences which the petitioners herein were facing with
are prima facie made out. The relevant provisions of Sections 405,
406 and 420 of I.P.C read as follows:-
“405. Criminal breach of trust—Whoever, being
in any manner entrusted with property, or with any
dominion over property, dishonestly misappropriates or
converts to his own use that property, or dishonestly
uses or disposes of that property in violation of any
direction of law prescribing the mode in which such
trust is to be discharged, or of any legal contract,
express or implied, which he has made touching the
discharge of such trust, or wilfully suffers any other
person so to do, commits “criminal breach of trust”.
[Explanation [1].—A person, being an employer [of an
establishment whether exempted under section 17 of
the Employees’ Provident Funds and Miscellaneous
Provisions Act, 1952 (19 of 1952), or not] who deducts
the employee’s contribution from the wages payable to
the employee for credit to a Provident Fund or Family
Pension Fund established by any law for the time being
in force, shall be deemed to have been entrusted with
the amount of the contribution so deducted by him and
if he makes default in the payment of such
contribution to the said Fund in violation of the said
law, shall be deemed to have dishonestly used the
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Crl.O.P.(MD)No.697 of 2022
amount of the said contribution in violation of a
direction of law as aforesaid.]
[Explanation 2.—A person, being an employer, who
deducts the employees’ contribution from the wages
payable to the employee for credit to the Employees’
State Insurance Fund held and administered by the
Employees’ State Insurance Corporation established
under the Employees’ State Insurance Act, 1948 (34 of
1948), shall be deemed to have been entrusted with
the amount of the contribution so deducted by him and
if he makes default in the payment of such
contribution to the said Fund in violation of the said
Act, shall be deemed to have dishonestly used the
amount of the said contribution in violation of a
direction of law as aforesaid.]
406. Punishment for criminal breach of trust—Whoever
commits criminal breach of trust shall be punished with
imprisonment of either description for a term which
may extend to three years, or with fine, or with both.
420. Cheating and dishonestly inducing delivery
of property— Whoever cheats and thereby dishonestly
induces the person deceived to deliver any property to
any person, or to make, alter or destroy the whole or
any part of a valuable security, or anything which is
signed or sealed, and which is capable of being
converted into a valuable security, shall be punished
with imprisonment of either description for a term
which may extend to seven years, and shall also be
liable to fine.”
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Crl.O.P.(MD)No.697 of 2022
14.In the present case, the F.I.R levelled against the
petitioners herein is that one which involves commission of offences
of criminal breach of trust and cheating. While a criminal breach of
trust as postulated under Section 405 of I.P.C entails
misappropriation or conversion of another's property for one's own
use, with a dishonest intention, cheating that too on the other hand
as an offence defined under Section 415 of I.P.C involves an
ingredient of having a dishonest or fraudulent intention which is
aimed at inducing the other party to deliver any property to a
specific person. Both the Sections clearly prescribed 'dishonest
intention' as a pre-condition for even prima facie establishing the
commission of said offences. Whereas, as stated supra, the
petitioners duly purchased the property from the said Jeyalakshmi
and Balamurali and the second respondent by the registered sale
deeds in the year 2017. After a period of three years, the son and
daughter of the second respondent filed suits for partition and
declaration declaring that the sale deeds executed in favour of the
petitioners as null and void and are pending. After having been
instituted civil suits, the present complaint lodged against the
petitioners and tried to give criminal colour.
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Crl.O.P.(MD)No.697 of 2022
15.It is relevant to rely upon the land mark Judgment of the
Honourable Supreme Court of India in the case of State of
Haryana and others Vs. Bhajanlal and others reported in 1992
Supp (1) SCC 335, in which, the Honourable Supreme Court of
India has laid down the following categories of instances wherein
inherent powers can be exercised in order to secure the ends of
justice as follows:-
“(a) where the allegations made in the First
Information Report or the complaint, even if they 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;
(b) where the allegations in the First
Information Report and other materials, if any,
accompanying the F.I.R. 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;
(c) 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;
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Crl.O.P.(MD)No.697 of 2022
(d) 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;
(e) where the allegations made in the FIR or
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;
(f) 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;
(g) 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.”
16.Therefore the registration of the present impugned F.I.R
against the petitioners is illegal and arbitrary and it does not
disclose any cognizable offence. Hence, it is liable to be quashed.
Accordingly, this Criminal Original Petition stands allowed and as a
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Crl.O.P.(MD)No.697 of 2022
sequel, the FIR in Crime No.35 of 2021 on the file of the first
respondent is quashed. Consequently, connected Miscellaneous
Petition is closed.
06.04.2022
Internet :Yes
Index :Yes / No
ps
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 Inspector of Police,
District Crime Branch
Madurai.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.O.P.(MD)No.697 of 2022
G.K.ILANTHIRAIYAN, J.
ps
Order made in
Crl.O.P(MD)No.697 of 2022
06.04.2022
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