Madras High Court
Thulasiyaiya vs The State Rep. By on 11 April, 2022
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date: 11/04/2022
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.OP(MD)No.3259 of 2019
and
Crl.MP(MD)Nos9.1828 and 1829 of 2019
Thulasiyaiya : Petitioner/A1
Vs.
1.The State rep. by
The Inspector of Police,
Gandharvakottai Police Station,
Pudukottai District.
(Crime No.259 of 2016) : R1/Complainant
2.Janakiraman : R2/De-facto Complainant
Prayer: Criminal Original Petition has been filed
under section 482 of the Criminal Procedure Code, to call
for the records in PRC No.21 of 2018 on the file of the
Judicial Magistrate, Pudukottai and quash the same.
For Petitioner : Mr.P.Jameel Arasu
For 1st Respondent : Mr.Kottai Chamy
Government Advocate
(Criminal side)
For 2nd Respondent : Mr.M.Ramu
https://www.mhc.tn.gov.in/judis
2
O R D E R
This petition has been filed seeking quashment of
the case in PRC No.21 of 2018 on the file of the Judicial
Magistrate, Pudukottai.
2.The case of the prosecution in brief:-
Land dispute is existed between the de-facto
complainant Janakiraman and the accused persons. In
pursuance of the above said enmity, on 13.09.2016 at
about 11.30 am, all the accused persons trespassed into
the property situated in Survey No.112/4 and caused
damage to the sugarcane crops. They also caused severe
criminal intimidation. The worth of the damaged crops is
about Rs.5,94,125/-. They also taken away the Swaraj
Tractor bearing registration No.TN-55-AD-0798. Based upon
the complaint given by the de-facto complainant, a case
in Crime No.259 of 2016 for the offences under sections
3(1) of TNPPDL Act and 379(NP) and 506(ii) IPC was
registered and after completing the formalities of
investigation, final report was also filed stating that
the accused persons have committed the offences as stated
above, which was taken in PRC No.21 of 2018 by the trial
court.
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3.Seeking quashment of the same, this petition has
been filed by the petitioner/A1 on the ground that on the
earlier occasion, the complaint given by the de-facto
complainant was closed as 'Mistake of Fact' after
investigation, on 29/11/2016 and on the basis of the
protest petition filed by the de-facto complainant, the
court directed the respondent police to conduct fresh
investigation and file a final report. Based upon only,
the present final report has been filed without
collecting further materials.
4.Heard both sides.
5.An initial argument has been advanced by the
learned counsel appearing for the petitioner that
originally, the complaint was closed, on 29/11/2018 by
the Investigating Officer as 'Mistake of Fact'. But
however, the very same Investigating Officer has filed a
final report, on 16/10/2018 stating that the offence
under sections 379 (NP), 506(ii) IPC r/w section 3(1) of
TNPPDL Act has been committed. So on that basis, the
learned Government Advocate (Criminal side) is required
to get instruction from the officer concerned.
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6.Now let us straightaway go to the copy of the
closure report, dated 29/11/2016, which is enclosed in
the typed set of papers, wherein it has been mentioned
that on the basis of the complaint given by the de-facto
complainant, enquiry was undertaken by registering the
case in Crime No.259 of 2016 and before that, after
receiving the complaint, CSR enquiry was undertaken in
Petition No.303 of 2016. It has been mentioned that
during the course of investigation, it was found that
Manicka Konar divided the entire properties and allotted
shares to their sons Thulasiyaiya, Govindaraj,
Janakiraman and Chelladurai by way of family arrangement.
In that family arrangement, Thulasiyaiya was allotted
property in Survey No.112/4. But no document was
registered or executed. But the complainant namely
Janakiraman wanted that the entire property must be taken
by him. So he took his father Manicka Konar to the Sub
Registrar Office and got deed executed in his favour by
including the property, which was allotted to
Thulasiyaiya and Govindaraj, in which his brother namely
Chelladurai was also involved. On coming to know about
the above said registration of the document, Thulasiyaiya
filed a suit in O.S No.158 of 2016. During the pendency
https://www.mhc.tn.gov.in/judis
of the suit, fearing that he may leased out the property,
the complainant Janakiraman filed a false complaint. So
according to the Investigating Officer, the complaint was
given with a bad intention. So it was closed 29/11/2016.
After filing of the RCS notice, the above said
Janakiraman was also served with notice. But further
particulars with regard to the proceedings is not
available on record.
7.According to the 2nd respondent, after filing the
protest petition only, further investigation was ordered.
Only on the basis of the further investigation, final
report was filed. But the earlier statement of the
witnesses are not available.
8.The learned counsel appearing for the petitioner
would rely upon the Commissioner report that was filed by
the above Commissioner in O.S No.486 of 2018. According
to him, during the visit, it was found that there was no
standing crops and only a piece of sugarcane crop was
found here and there. The date of visit is stated to be
27/12/2018. But as per the FIR, it is stated to be taken
place, on 13/09/2016. So the Commissioner report is not
https://www.mhc.tn.gov.in/judis
at all relevant for consideration and who was in
possession on the date of suit as well as the present
complaint is a matter for trial before the civil court.
9.The learned counsel appearing for the petitioner
would submit that there are contradictions with regard to
the complaint as well as the statement. The contradictory
statements cannot be a matter for consideration in a
petition filed under section 482 Cr.P.C. So during the
course of further investigation, the complainant stated
that each and every year, whenever sugarcane is planted,
the accused persons are preventing them from harvesting
or cultivating. This is the only further statement that
was recorded and that portion has been repeated by the
other witnesses also. Further statement of the parties
have been recorded, on 29/08/2018. The earlier closure
report says that absolutely, there was no truth in the
complaint. The further statement also shows that the 2nd
respondent wants to sustain his possession. So it is
purely a civil dispute between the brothers.
10.As mentioned in the closure report, the father
alleged to have partitioned the property and allotted
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shares to each sons and one of the sons was not satisfied
with the allotment. That is the problem for the issue.
The date of plaint in O.S No.120 of 2017 is 18/09/2017,
which is much before filing of the complaint. The suit
was filed by Chelladurai, one of the brothers, in which
the neighbour, who is the de-facto complainant is a
party. This petitioner is the defendant there.
11.Reading of the above said plaint shows that in
respect of the allotment of the shares in the family
partition, the petitioner also filed O.S No.158 of 2016,
which was for declaration and injunction. That was filed
on the basis of the family arrangement. Now that was
disputed by Chelladurai in respect of tractor bearing
No.TN-55-AD-0798. When Chelladurai has also stated that
the above said tractor was allotted to him, even as per
the case of the petitioner, it must be returned to him.
12.Now let us go back to the complaint, wherein the
very same tractor has been mentioned, as if the above
said tractor was taken by the petitioner, which belongs
to the above said Chelladurai. So it appears that there
is a continuous dispute between the members of the family
https://www.mhc.tn.gov.in/judis
in respect of sharing of the property. So I find though
prima facie case, it appears that it is a civil dispute
between brothers, which has been given criminal colour.
The private complaint has been filed with an ulterior
intention of creating document for the purpose of
claiming right over the family properties. So I find that
the complaint itself is a mala fide one, which is rightly
closed by the Investigating Officer, earlier. But in
pursuance of the above said direction, without making
further proper investigation, the final report has been
filed in a routine manner, which is not at all
permissible under law.
13.Further the investigation ought to have been
undertaken with reference to the alleged occurrence and
not with regard to the subsequent events. The grievance
is that even as per the above said complaint, they are
not permitted to cultivate the land and harvesting the
crops. That cannot be a reason for filing final report.
On that ground, the prosecution is bad in law.
14.The learned counsel appearing for the 2nd
respondent would mainly relied upon the judgment of the
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Hon'ble Supreme Court in the case of State of Madhya
Pradesh Vs. Yogendra Singh Jadon and another (Criminal
Appeal No.175 of 2020, dated 31/01/2020 and Rajeev Kourav
Vs. Baisahab and others (Criminal Appeal No.232 of 2020,
dated 11/02/2020) for the purpose of argument that while
exercising the jurisdiction 482 Cr.P.C, this court should
not undertake the exercise of finding of the truth or
otherwise of all the allegations. According to him,
weighing the evidence, at this stage, is not at all
permissible under law.
15.No doubt that at the stage of exercising 482
Cr.P.C, the court cannot take the statement recorded
under section 161 Cr.P.C as evidence. But at the same
time, when the prosecution itself is aimed by creating
the evidence over the disputed property without any
basis, it can be quashed on the ground that it is clearly
an abuse of process of court and law.
16.So, I find that this is one of the fittest cases
to exercise the jurisdiction under section 482 Cr.P.C. In
the light of the above development, the entire criminal
proceedings is liable to be quashed and accordingly, it
is quashed.
https://www.mhc.tn.gov.in/judis
17.In the result, this criminal original petition is
allowed. The impugned PRC No.21 of 2018 on the file of
the Judicial Magistrate, Pudukottai is hereby quashed
against the petitioner. Consequently, connected
Miscellaneous Petitions are closed.
11/04/2022
Index:Yes/No
Internet:Yes/No
er
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.
https://www.mhc.tn.gov.in/judis
To,
1.The Judicial Magistrate,
Pudukottai,
Pudukottai District.
2.The Inspector of Police,
Gandharvakottai Police Station,
Pudukottai District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
G.ILANGOVAN, J
er
Crl.OP(MD)No.3259 of 2019
11.04.2022
https://www.mhc.tn.gov.in/judis
