Madras High Court
Boominathan vs Nallasivam [Died on 7 April, 2022
Crl.R.C.No.1064 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.04.2022
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.R.C.No.1064 of 2017
Boominathan ... Petitioner
Vs.
1.Nallasivam [Died]
2.State rep. by
The Sub Inspector of Police
Central Crime Branch,
Crime No.102 of 2005. ... Respondent
PRAYER: Criminal Revision Petition filed under Sections 397 r/w. 401 of
Criminal Procedure Code, to call for the records relating to the judgment
passed by the learned Principal Sessions Judge, Thiruvallur in C.A.No.35 of
2015 dated 05.07.2017, dismissing the appeal and confirming the order of
the learned Judicial Magistrate No.I, Poonamallee dated 27.03.2015 in
C.C.No.233 of 2006 under Sections 465 r/w. 120-B of IPC, 468 r/w. 471 of
IPC and 420 r/w. 34 of IPC and set aside the same.
1/21
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1064 of 2017
For Petitioner : Mr.Swami Subramanian
For R2 : Mr.A.Damodaran
Additional Public Prosecutor
For Defacto
Complainant : Mr.M.K.Subramanian
ORDER
The petitioner/A3 in C.C.No.233 of 2006 convicted by the learned
Judicial Magistrate No.I, Poonamallee by judgment dated 27.03.2015 for
the offence under Section 465 r/w. 120-B of IPC sentenced him to undergo
one year rigorous imprisonment and to pay a fine of Rs.1000/-, in default to
undergo one month simple imprisonment, for the offence under Section 468
r/w. 471 of IPC sentenced him to undergo one year rigorous imprisonment
and to pay a fine of Rs.1,000/-, in default to undergo one month simple
imprisonment and for the offence under Section 420 r/w. 34 of IPC
sentenced him to undergo two years rigorous imprisonment and to pay a
fine of Rs.3,000/-, in default to undergo two months simple imprisonment.
Aggrieved against the same, the petitioner preferred an appeal before the
learned Principal District and Sessions Judge, Thiruvallur in C.A.No.35 of
2015. The learned Sessions Judge by judgment dated 05.07.2017 dismissed
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1064 of 2017
the appeal confirming the conviction and sentence imposed by the Trial
Court, against which the present revision petition is filed.
2.The gist of the case is that the defacto complainant Rajasekar
lodged a complaint to the Commissioner of Police that his great grandfather
Raghavan Naicker gave 1.50 acres of land comprising in S.No.51/2, 52/2A,
52/2B at Okkiam, Thoraipakkam to his grandmother Kannammal [daughter
of Raghavan Naicker and Mother of Ayyasamy] as sreedhanam vide
settlement deed in Doc.No.2704 of 1925 dated 23.10.1925 registered in
SRO, Saidapet. Till 1979, Kannammal was doing agriculture and thereafter,
the defacto complainant's father Ayyasamy, who is the only son of
Kannammal. The defacto complainant's father died on 20.06.1993, from
that date onwards the defacto complainant and his sister Shanthi was in
enjoyment of the property, all the taxes and revenue records are in the name
of the defacto complainant's father Ayyasamy. One Kathiresan/A2
approached the Village Administrative Officer for obtaining patta for the
said lands of the defacto complainant. On coming to know about the same,
the defacto complainant verified the encumbrance certificate and found that
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1064 of 2017
one Santha/A1, wife of Senthilvelayutham executed a registered settlement
deed for 58 cents comprised in S.No.51/2, 52/2 at Okkiam, Thoraipakkam in
favour of her son Kathiresan, vide Doc.No.4719 of 2005 dated 17.08.2005
at S.R.O., Neelankarai. The said Kathiresan/A2 executed a registered sale
deed for 58 cents of land to Boominathan/the petitioner herein on
10.10.2005 vide Doc.No.5867 of 2005, the sale consideration was shown as
Rs.14,16,128/- contrary to the market value of Rs.2 Crores. Hence, the
defacto complainant lodged a complaint to the CCB Police, who registered a
case in Crime No.102 of 2005 and on conclusion of investigation, filed the
final report. During trial, P.W.1 to P.W.9 were examined, Ex.P1 to Ex.P16
were marked, on the side of the defence D.W.1 was examined and Ex.D1 to
Ex.D10 were marked. On conclusion of the trial, the Trial Court convicted
A1/Santha who executed the settlement deed in favour of A2/her son, A3 is
the petitioner herein who purchased the property based on the forged
settlement deed, A4 and A5 are the attesting witnesses to the documents.
The Lower Appellate Court dismissed the appeal filed by the accused and
confirmed the conviction and sentence imposed by the Trial Court as stated
above.
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1064 of 2017
3.The contention of the petitioner is that the evidence of P.W.1 and
P.W.2 proving the origination of document, Ex.P2/Patta in the name of
Kannammal, grandmother is highly doubtful. Ex.P1 is a certified copy of
the sale deed, original document not produced. P.W.1 and P.W.2 not
produced any evidence to show that they have inherited the property and
were in exclusive possession and enjoyment of the same. The encumbrance
certificate for Doc.No.2704 of 1925, which is marked as Ex.P7, is not
helpful to the prosecution. The Land Acquisition Award receipt/Ex.P3
which the Lower Court relied upon heavily is not proper. All these
documents are self serving documents and the case before the Lower Court
was not with regard to land acquisition by the Government. Admittedly, in
S.Nos.51 and 52 of Okkiyam Village, large extent of lands were available.
P.W.6/Stamp vendor admit that she initially an unlicensed stamp vendor
was dealing with stamp papers, her father and brother are the licensed stamp
vendors during the relevant period, hence issuance of non-judicial stamp
papers by P.W.6 cannot be doubted. Further, it is seen that Ex.P9 is only a
certified Photostat copy of the document filed before the Civil Court,
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1064 of 2017
P.W.8/Investigating Officer not taken any steps to bring the originals before
the Trial Court, from the Photostat copy of the document, the forgery of the
signatures cannot be studied and conclusively proved. In this case,
admittedly no forensic or any handwriting expert, examined to prove that
the documents were tampered and forged. The Lower Court relied on the
confession of A1 and A2 in toto which is against law, under Section 27 of
the Indian Evidence Act only the portion leading to any recovery alone can
be relied upon, but that is not the case herein. The Lower Court in a
pre-determined mind admitted the inadmissible documents despite
objections made by the petitioner. It is further submitted that under section
91 Cr.P.C. certain documents were summoned, without any reason P.W.3
was recalled to mark these documents. Hence, Ex.P14 to Ex.P16 cannot be
looked into. Further the Lower Court failed to consider the civil suits
pending which were filed by either side. There is no iota of evidence to
show that the petitioner conspired with the other accused in commission of
any of the offence, the petitioner is only an innocent purchaser. A2
produced the settlement deed of his mother and certified copy of the parent
document stating that the original was damaged and destroyed. It was on
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1064 of 2017
such submission and on perusal of the material, after getting opinion, the
petitioner purchased the property. The petitioner paid for the property on
the guideline value and purchased the same. The Registration authorities
finding that the documents, properly valued admitted the same and
registered the document. The petitioner, on coming to know that he was
cheated and he became victim of circumstances, not only lost the valuable
consideration paid for the property, now facing criminal case, now due to
the conviction, he is stigmatized. The petitioner thereafter approached the
defacto complainant, explained to him as to under what circumstances he
was cheated, expressed his willingness to withdraw the civil suit and not to
contest the civil suit filed by the defacto complainant. On such submission,
the defacto complainant also agreed to the same and necessary petitions
were filed before the Civil Court. The petitioner produced the memo filed
in O.S.No.159 of 2007 and the withdrawal affidavit filed in O.S.No.335 of
2005. Before the Civil Court, O.S.No.159 of 2007 was filed by
Mrs.Shenbagavalli, mother of P.W.1, P.W.2, O.S.No.335 of 2005 filed by
the petitioner against Mrs.Shenbagavalli, P.W.1 and P.W.2 and now there is
no civil suit pending between them. The claim over the property by the
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1064 of 2017
petitioner no more exist. The petitioner relinquished all his rights over the
disputed property
4.The defacto complainant filed written statement and submitted that
his great grandfather Raghavan Naicker gave 1.50 acres of land comprising
in S.No.51/2, 52/2A, 52/2B at Okkiam, Thoraipakkam to his grandmother
Kannammal as Sreethanam vide settlement deed registered in SRO,
Saidapet as Doc.No.2704 of 1925 dated 23.10.1925. The defacto
complainant's grandmother was doing agriculture and after her demise, his
father Ayyasamy was doing agriculture till his death on 20.06.1993.
Thereafter, the property devolved on defacto complainant's mother
Shenbagavalli, defacto complainant and his sister Shanthi. In the year 1983,
a notice was issued by Special Tahsildar to Ayyasamy to acquire land for
formation of road. On 09.10.1987, the Government had taken over 69 cents
in S.No.51/2, 9 cents in S.No.52/2A, 9 cents in S.No.52/2B, totally 87 cents
and paid the award of Rs.8,757.85 paise in Award No.7/87 dated
16.12.1987. Aggrieved against the payment of award, the defacto
complainant's father Ayyasamy filed a case before the Sub Court,
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1064 of 2017
Poonamallee in L.A.O.P.No.58 of 1988. Subsequently, the case was
transferred to Sub Court, Chengalpet and now the case is pending before the
Sub Court, Alandur. After the demise of Ayyasamy, P.W.1, P.W.2 and their
mother Mrs.Shenbagavalli got impleaded as petitioners in the land
acquisition case. After the land acquisition, the defacto complainant was
left with 63 cents of land in his possession and enjoyment. One
Kathiresan/A2 approached the concerned Village Administrative Officer for
obtaining patta for the said land of the defacto complainant, this came to the
knowledge of the defacto complainant, immediately he obtained
encumbrance certificate and found that Santha [A1], wife of
Senthilvelayutham, mother of Kathiresan [A2] registered an illegal and
unlawful settlement deed for 58 cents comprised in S.No.51/2 and
S.No.52/2 at Okkiam, Thoraipakkam Village, vide Doc.No.4719 of 2005
dated 17.08.2005 at S.R.O., Neelangarai. Thereafter, Kathiresan [A2]
executed a registered sale deed conveying the 58 cents of land to
Booominathan/A3/petitioner herein on 10.10.2005 vide Doc.No.5867 of
2005 and the purchase price was shown as Rs.14,16,128/- which is a sham
transaction since the said property, at that time, was valued more than Rs.2
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1064 of 2017
Crores. Thereafter, the defacto complainant lodged a complaint and the
Central Crime Branch took up the investigation, examined the defacto
complainant, his sister, the stamp vendor, other revenue and registration
authorities, collected documents and filed a charge sheet against A1 to A5.
5.Before the Trial Court, P.W.1 to P.W.9 were examined, Ex.P1 to
Ex.P16 were marked, on the side of the defence, D.W.1 was examined and
Ex.D1 to Ex.D10 were marked. It is further submitted that the petitioner
conspired with the other accused, created forged document, thereby
attempted to take away the defacto complainant's property, the petitioner
filed a civil suit knowingly on the forged documents. Further, A1 in this
case traces the right over the property through Doc.No.2648 of 1964 as
though her husband Senthilvelayutham purchased the property. It is
conveniently stated in the settlement deed in favour of A2 vide
Doc.No.4719 of 2005 and in the sale deed executed by A2 in favour of the
petitioner vide Doc.No.5867 of 2007 that the original sale deed in
Doc.No.2648 of 1964 was destroyed by fire in the year 1971. During
investigation, it was found Doc.No.2648 of 1964 is a mortgage deed
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1064 of 2017
between Sultan Mohideen and Abdul Rahim and the property mentioned in
that deed is situated at Jamin Pallavaram. These facts deposed by
P.W.3/Sub-Registrar, Pallavaram, marked Ex.P5. Further, P.W.4/Ramaiah,
District Registrar, Administration South Chennai, gave details with regard
to the address and license number of stamp vendor P.W.6/S.Mangalam
whose name found as stamp vendor in the copy of document. It was found
that the license number of P.W.6/Mangalam is L.No.9941/89 dated
28.02.1990 and her address is No.18/2, Moorthy Street, West Mambalam,
Chennai-33, on the contrary her name is found in the stamp paper in the
copy of document in Serial No.3238 dated 15.12.1972. The said
Mangalam/P.W.6 admits that she was not a stamp vendor during that period
and she is a licenced stamp vendor only from 1989. Thus, Doc.No.2648 of
1964 is a forged one in all aspects. Based on this forged document, the
subsequent settlement deed and sale deed were created and executed. The
petitioner aware of these forgery, purchased the property. Further the
petitioner filed O.S.No.335 of 2005 before the Civil Court based on these
forged documents.
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1064 of 2017
6.In this case apart from P.W.1, P.W.2, his sister, P.W.3/Sub
Registrar, Pallavaram, P.W.4/District Registrar Administration South
Chennai, P.W.5/Joint Registrar, Saidapet, P.W.6/Mangalam, Stamp Vendor,
P.W.7/witness to the confession of A1 and A2, lead to recovery of certain
documents, P.W.8 and P.W.9, Investigating Officers have cogently given
their evidence with corresponding documents. The Trial Court on the
material evidence produced rightly convicted the petitioner and other
accused. It is fairly submitted that the petitioner/A3 filed a memo to
withdraw the suit filed by him against the defacto complainant and his
family members in O.S.No.335 of 2005 and now memo filed in O.S.No.335
of 2005 is dismissed as withdrawn on 04.04.2022. The petitioner also filed
a memo in the suit filed by the family members of the defacto complainant
against the petitioner and others in O.S.No.159 of 2007 submitting that he
has no objection to decree the suit as prayed for by the plaintiff therein. It is
further submitted that by the proceedings of the District Registrar,
Administration Chennai South in Na.Ka.No.15827/E2/2018 dated
21.05.2019 had cancelled Doc.No.4719/2005, Doc.No.5867/2005 and
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1064 of 2017
Doc.No.6342/2005, the encumbrance created using forged documents were
set aside and removed.
7.The learned Additional Public Prosecutor appearing for the second
respondent submits that on the complaint of the defacto complainant, a case
came to be registered, on conclusion of investigation, charge sheet filed
before the learned Judicial Magistrate No.I, Poonamallee and the same was
taken on file in C.C.No.233 of 2006. During trial, P.W.1 to P.W.9
examined, Ex.P1 to Ex.P16 marked, on the side of the defence D.W.1 was
examined, Ex.D1 to Ex.D10 marked, on conclusion of trial, A1 to A5
convicted. Aggrieved against the same, A1/Santha preferred an appeal in
C.A.No.34 of 2015, the same was dismissed on 27.03.2015, thereafter she
filed a revision petition before this Court in Crl.R.C.No.1063 of 2017 and
the same was dismissed on 13.09.2019. A5 preferred an appeal in
C.A.No.125 of 2017, the same was dismissed, against which he preferred a
revision petition before this Court in Crl.R.C.No.478 of 2019 and this Court
by order dated 14.06.2017 directed him to surrender before the Trial Court.
Thereafter, finding A5 failed to surrender, the revision petition was
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1064 of 2017
dismissed as withdrawn. A5 approached the Apex Court by way of a
Special Leave Petition in S.L.P.(Crl.).No.45379 of 2019, the Apex Court on
27.01.2020 granted three weeks time to A5 to surrender. Thereafter, A5
surrendered before the Trial Court on 13.02.2020 and this Court by order
dated 20.03.2020 granted suspension of sentence in Crl.R.C.No.478 of
2019, the same is pending. He further submitted that the respondent police
formed a special team to secure A1 and A2 and produce before the
Competent Court for them to serve their sentence. As far as this petitioner
is concerned, he is the purchaser of the property for consideration. He
would further submit that in view of the understanding arrived at and
withdrawal of the civil suit and on the specific undertaking given by the
petitioner, that he or his men or anyone will not make any claim over the
property can be considered. Further, the forged documents created are in
the nature of private documents and now cancelled, the encumbrance
created, removed.
8.Considering the submissions made and on perusal of the materials
placed before this Court, it is seen that the petitioner/A3 purchased the
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1064 of 2017
property by a registered sale deed vide Doc.No.5867/2005 for a
consideration. The registration authorities finding the sale deed proper in
all aspects including valuation of the property registered the sale deed. In
the sale deed Doc.No.5867/2005, the devolution of property is by way of
settlement by Shantha/A1, mother to Kathiresan/A2, her son is recorded.
The petitioner finding objection and resistance from the defacto
complainant/P.W.1, his sister/P.W.2 and mother Mrs.Shenbagavalli filed
civil suit in O.S.No.335 of 2005. On the other hand, Mrs.Shenbagavalli,
mother of defacto complainant/P.W.1 filed a civil suit in O.S.No.159/2007.
Now the petitioner coming to know about the real actual position, realizing
the folly, now withdrawn the civil suit in O.S.No.335 of 2005, further filed a
memo submitting to decree in O.S.No.159 of 2007, which he was
defending. It is further seen that the District Registrar, Administration
South Chennai in Na.Ka.No.15827/E2/2018 dated 21.05.2019 cancelled the
Documents, Doc.No.4719/2005, Doc.No.5867/2005 and Doc.No.6342/2005
after detailed enquiry finding it to be forged. The encumbrance created now
set aside, cleared and removed.
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1064 of 2017
9.Be that as it may. From the evidence and materials available in this
case, it is seen P.W.1, P.W.2 and Mrs.Shenbagavalli are legal heirs of
Late.Ayyasamy. The property in S.No.51/2 and 52/2 to the total extent of 1
acre 50 cents was given in settlement to their grandmother Late.Kannammal
by great grandfather Late.C.M.Raghavan Naicker by settlement deed vide
Doc.No.2704/1925 dated 23.10.1925, in patta No.25. Then on, it is in their
continuous possession and enjoyment with them. On 19.05.1983, for road
formation to the extent of 87 cents was acquired by the Government,
compensation paid to Ayyasamy, against which suits are pending, which we
are not concerned now. With regard to the balance 58 cents, forged
documents created, after the death of Kannammal and Ayyasamy, projecting
as though Senthilvelayutham, husband of A1 purchased the property by
Doc.No.2648/1964. After the demise of Senthivelayutham, his wife
Shantha/A1 settles this 58 cents of land to her son Kathiresan/A2, by
Doc.No.4719/2005. Thereafter, this petitioner Boominathan/A3 purchased
the property by Doc.No.5867/2005 for valid consideration, based on
Doc.No.2648/1964 which is projected as destroyed in a fire. Later, it is
found that Doc.No.2648/1964 is a mortgage deed registered in SRO,
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1064 of 2017
Pallavaram. Hence this petitioner is implicated for purchasing the property
vide Doc.No.5867/2005. Since A1 and A2 have no right over the property
and they have created forged documents, knowingly using the forged
documents with false particulars had created Doc.No.5867/2005 and thereby
created encumbrance, claiming right over the property. The petitioner using
the forged documents filed civil suits. P.W.1 and P.w.2 deposed about
property devolving on them from their ancestors. P.W.3/SRO, Neelankarai,
P.W.4/District Registrar, Administration, Chennai Sought, P.W.5/Sub-
Registrar, Joint Registrar Office, Saidapet, are the witnesses from the
registration Department. P.W.6 is the stamp vendor, P.W.7 is the witness
for arrest and recovery of documents from A1 and A2, P.W.8 and P.W.9 are
the Investigating Officers. From the evidence and documents produced
from these witnesses, nowhere it is seen that the petitioner/A3 had
knowingly purchased the property, with forged documents, none of the
witness spoken about the petitioner privy to the forgery, actively taken part
along with other accused in execution of forged documents and thereby
claiming right over the property. No document seized from the petitioner.
The petitioner purchased the property for valid consideration. The
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1064 of 2017
registration authorities having no objection on the value of the property
registered the sale deed vide Doc.No.5867/2005. The petitioner believing
the same as genuine filed civil suit, now withdrawn the same, after coming
to know that petitioner has been cheated by the other accused by
representing as though they have legal right over the property and by
producing registered settlement deed. Even if some acts are proved to have
committed, it must be clear that they were so committed in pursuance of an
agreement made between the accused persons, who were parties to the
alleged conspiracy. Inference from such proved circumstances regarding
the guilt may be drawn only when such circumstances are incapable of any
other reasonable explanation, mere suspicion cannot take the place of legal
proof.
10.In view of the above, the conviction of the Trial Court which was
confirmed by the Lower Appellate Court is not proper. The petitioner is an
innocent purchaser, not knowingly caught into the entanglement. The
prosecution failed to prove the case against the petitioner beyond all
reasonable doubts. The Trial Court has convicted the petitioner/A3 only on
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1064 of 2017
mere surmise and the Lower Appellate Court without independently
assessing and weighing the evidence and materials confirmed the conviction
and sentence. In view of the same, this Court is inclined to allow the
revision petition setting aside the conviction of the petitioner in C.C.No.233
of 2006 by the learned Judicial Magistrate No.I, Poonamallee dated
27.03.2015, confirmed in C.A.No.35 of 2015 by the learned Principal
Sessions Judge, Thiruvallur by judgment dated 05.07.2017. The petitioner
is acquitted from all the charges levelled against him.
11.In the result, the judgment, dated 27.03.2015 in C.C.No.233 of
2006, passed by the learned Judicial Magistrate No.I, Poonamallee which
was confirmed by the judgment dated 05.07.2017 passed by the learned
Principal Sessions Judge, Thiruvallur in C.A.No.35 of 2015 is hereby set
aside. Accordingly, this Criminal Revision Petition stands allowed.
07.04.2022
Speaking Order/Non Speaking Order
Index : Yes/No
Internet : Yes/No
cse
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1064 of 2017
To
1. The Sub Inspector of Police
Central Crime Branch,
Crime No.102 of 2005.
2.The Judicial Magistrate No.I,
Poonamallee.
3.The Principal Sessions Judge,
Thiruvallur.
4.The Public Prosecutor,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1064 of 2017
M.NIRMAL KUMAR, J.
cse
Crl.R.C.No.1064 of 2017
07.04.2022
https://www.mhc.tn.gov.in/judis
