Madras High Court
N.Mohanlal vs The Inspector Of Police on 18 April, 2022
Crl.O.P.(MD)No.19193 of 2021
BEFORE THE MADURAI BENGH OF MADRAS HIGH COURT
DATED: 18.04.2022
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.(MD)No.19193 of 2021
and
Crl.M.P(MD)Nos.10693 & 10696 of 2021
N.Mohanlal ... Petitioner/Accused No.1
Vs.
1.The Inspector of Police,
District Crime Branch,
Nagercoil,
Kanyakumari District.
(Crime No.46 of 2011) ... 1st Respondent/Complainant
2.N.Suthirlal ... 2nd Respondent/
Defacto Complainant
Prayer: Criminal Original Petition filed under Section 482 Cr.P.C., to
call for the records in C.C.No.101 of 2015 on the file of the learned
Judicial Magistrate No.II, Kuzhithurai and quash the same.
For Petitioner : Mr.H.Arumugam
For R – 1 : Mr.B.Thanga Aravindh
Government Advocate (Crl. Side)
For R – 2 : Mr.M.Kannan
https://www.mhc.tn.gov.in/judis
1/9
Crl.O.P.(MD)No.19193 of 2021
ORDER
This petition has been filed to quash the proceedings in
C.C.No.101 of 2015 on the file of the learned Judicial Magistrate
No.II, Kuzhithurai, as against the petitioner.
2. The case of the prosecution is that the defacto complainant
and the petitioner are brothers. While the defacto complainant was
working in abroad, the property in Survey No.C4/10 at Nallur Village
measuring to an extent of about 10.725 cents of land along with
building bearing No.24/6 was purchased vide Document No.2771 of
1798, dated 01.06.1978, in the name of the defacto complainant by
his father. Thereafter, the second respondent married one Stella
Mary against the wish of his family members and abode at
Ernakulam, Kerala. Since the second respondent was not in the
native place, the property purchased in his name was released in
favour of the petitioner vide Document No.463 of 1989 by their
mother and sister. Thereafter, the said property along with other
properties were gifted by the petitioner to his wife vide Document
No.49 of 2009, dated 22.01.2009. After her death, the petitioner
executed a settlement deed in favour of his son, who is arrayed as
Accused No.2. Subsequently, Accused No.2 executed a sale deed
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.19193 of 2021
vide Document No.106 of 2011, dated 07.01.2011 in favour of
Palpandi, who is arrayed as Accused No.3. When the defacto
complainant came back to his native place, he found the above sale.
Hence, he lodged the complaint and the same has been registered
in Crime No.46 of 2011 for the offences under Sections 468, 471
and 420 of I.P.C. Subsequently, while filing charge-sheet, it has
been altered into Sections 465, 466, 467, 468 and 471 of I.P.C r/w
Section 34 of the Indian Penal Code, 1860. The final report was filed
on 06.04.2015 and the learned Judicial Magistrate No.II, Kuzhithurai
has taken cognizance of the same in C.C.No.101 of 2015.
3. Heard the learned counsel appearing for the petitioner, the
the learned Government Advocate (Criminal Side) appearing for the
first respondent and the learned counsel appearing for the second
respondent.
4. It is relevant to rely upon the judgment of the Hon'ble
Supreme Court of India passed in Crl.A.No.579 of 2019 dated
02.04.2019 in the case of Devendra Prasad Singh Vs. State of
Bihar & Anr., wherein the Honourable Supreme Court of India held
as follows:-
" 12.So far as the second ground is
concerned, we are of the view that the
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.19193 of 2021
High Court while hearing the application
under Section 482 of the Cr.P.C. had no
jurisdiction to appreciate the statement of
the witnesses and record a finding that
there were inconsistencies in their
statements and, therefore, there was no
prima facie case made out against
respondent No.2. In our view, this could
be done only in the trial while deciding the
issues on the merits or/and by the
Appellate Court while deciding the appeal
arising out of the final order passed by
the Trial Court but not in Section 482
Cr.P.C. proceedings.
13.In view of the foregoing
discussion, we allow the appeal, set aside
the impugned order and restore the
aforementioned complaint case to its
original file for being proceeded with on
merits in accordance with law.
5. Recently, the Hon'ble Supreme Court of India dealing in
respect of the very same issue in Crl.A.No.1572 of 2019 dated
17.10.2019 in the case of Central Bureau of Invstigation Vs.
Arvind Khanna, wherein, it has been held as follows:
“19. After perusing the impugned
order and on hearing the submissions made
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.19193 of 2021
by the learned senior counsels on both
sides, we are of the view that the impugned
order passed by the High Court is not
sustainable. In a petition filed under Section
482 of Cr.P.C., the High Court has recorded
findings on several disputed facts and
allowed the petition. Defence of the accused
is to be tested after appreciating the
evidence during trial. The very fact that the
High Court, in this case, went into the most
minute details, on the allegations made by
the appellant-C.B.I., and the defence put-
forth by the respondent, led us to a
conclusion that the High Court has exceeded
its power, while exercising its inherent
jurisdiction under Section 482 Cr.P.C.
20.In our view, the assessment made
by the High Court at this stage, when the
matter has been taken cognizance by the
Competent Court, is completely incorrect
and uncalled for.”
6. Further the Hon'ble Supreme Court of India also held in
the order dated 02.12.2019 in Crl.A.No.1817 of 2019 in the case
of M.Jayanthi Vs. K.R.Meenakshi & anr, wherein the Honourable
Supreme Court of India held as follows:
"9. It is too late in the day to seek
reference to any authority for the
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.19193 of 2021
proposition that while invoking the power
under Section 482 Cr.P.C for quashing a
complaint or a charge, the Court should not
embark upon an enquiry into the validity of
the evidence available. All that the Court
should see is as to whether there are
allegations in the complaint which form the
basis for the ingredients that constitute
certain offences complained of. The Court
may also be entitled to see (i) whether the
preconditions requisite for taking cognizance
have been complied with or not; and (ii)
whether the allegations contained in the
complaint, even if accepted in entirety,
would not constitute the offence alleged.
..............
13. A look at the complaint filed by
the appellant would show that the appellant
had incorporated the ingredients necessary
for prosecuting the respondents for the
offences alleged. The question whether the
appellant will be able to prove the
allegations in a manner known to law would
arise only at a later stage...................."
The above judgments are squarely applicable to this case and as
such, the points raised by the petitioner cannot be considered by
this Court under Section 482 Cr.P.C.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.19193 of 2021
7. In view of the above discussion, this Court is not inclined to
quash the proceedings in C.C.No.101 of 2015 on the file of the
learned Judicial Magistrate No.II, Kuzhithurai. The petitioner is at
liberty to raise all the grounds before the trial Court. Considering
the facts and circumstances of the case, the personal appearance of
the petitioner is dispensed with and he shall be represented by a
counsel after filing appropriate application. However, the petitioner
shall be present before the Court at the time of furnishing of copies,
framing charges, questioning under Section 313 Cr.P.C. and at the
time of passing judgment. The trial Court is directed to complete the
trial within a period of six months from the date of receipt of copy of
this Order.
8. Accordingly, this Criminal Original Petition is dismissed.
Consequently, connected Miscellaneous Petitions are closed.
18.04.2022
Internet :Yes
Index :Yes / No
ps
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.19193 of 2021
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.II,
Kuzhithurai.
2.The Inspector of Police,
District Crime Branch,
Nagercoil,
Kanyakumari District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.19193 of 2021
G.K.ILANTHIRAIYAN, J.
ps
Order made in
Crl.O.P(MD)No.19193 of 2021
18.04.2022
https://www.mhc.tn.gov.in/judis
