Madras High Court
Sanjay A. Khanna vs The State Of Tamil Nadu on 29 April, 2022
CRL.O.P.No.6573 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.04.2022
CORAM
THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
Crl.O.P.Nos.6573 & 32282 of 2019
and
Crl.M.P.Nos.17733 & 17735 of 2019
1.Sanjay A. Khanna
2.Kanchan Amirlal Nichani
3.Sheetal S. Khanna ...Petitioners in Crl.O.P.No.6573 of 2019
4.Sujatha Mouli ...Petitioner in Crl.O.P.No.32282 of 2019
Versus
1.The State of Tamil Nadu,
Rep. by the Inspector of Police,
Central Crime Branch,
EDF-2, Team 4,
Vepery, Chennai – 600 007.
2.Dr.J.Jaya Prasad ...Respondents in both Crl.O.Ps
Prayer in Crl.O.P.No.6573 of 2019: This Criminal Original Petition has
been filed under Section 482 of Criminal Procedure Code to call for the
records pertaining to the Charge sheet in C.C.No.4651 of 2015 on the file of
the Additional Chief Metropolitan Magistrate Court, Egmore, Chennai
(CCB).
Prayer in Crl.O.P.No.32282 of 2019: This Criminal Original Petition has
been filed under Section 482 of Criminal Procedure Code to call for the
Page No.1 of 18
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CRL.O.P.No.6573 of 2019
records pertaining to the Criminal Proceedings in C.C.No.1923 of 2017 on
the file of the CCB, CBCID Metropolitan Magistrate Court, Egmore,
Chennai.
For Petitioners : Mr.Palani Kumar
(in both Crl.O.Ps) for M/s.Kaithamalai Kumaran
For R1 : Mr.S.Vinothkumar
(in both Crl.O.Ps) Government Advocate (Crl.Side)
For R2 : M/s.A.Kalaiselvan
(in both Crl.O.Ps)
*****
COMMON ORDER
Crl.O.P.No.6573 of 2019 is filed by the Petitioners, who are arrayed as
A1, A2 and A7, before the Court of the learned Additional Chief
Metropolitan Magistrate, Egmore in C.C.No.4651 of 2015, in the final report
laid before the said Court by the Sub Inspector of Police, Central Crime
Branch, EDF-II, Team-IV, Vepery, Chennai.
2.Crl.O.P.No.32282 of 2019 is filed by the Petitioner - Sujatha Mouli,
who is the Third Accused in C.C.No.1923 of 2017 on the file of the Special
Court for Central Crime Branch, CB-CID Cases, Metropolitan Magistrate
Court, Egmore, Chennai.
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CRL.O.P.No.6573 of 2019
3.Both the cases arose out of the complaint filed by the second
Respondent Dr.J.Jaya Prasad to the Central Crime Branch, EDF-II, Team-IV,
Vepery, Chennai.
4.In Crl.O.P.No.32282 of 2019 the Petitioner is Sujatha Mouli, who is
arrayed as Accused No.3 in the final report filed by the Investigation Officer,
Central Crime Branch, EDF-II, Team-IV, Vepery attached to the
Commissioner of Police, Chennai.
5.Crl.O.P.No.6573 of 2019 is filed by three Petitioners, who are
arrayed as A-1, A-2 and A-7. In the final report laid before the Court of the
learned Special Judge, Metropolitan Magistrate for Central Crime Branch,
CB-CID Cases, Egmore, Chennai. A-8 is the Company viz., M/s.Health
Care Services Private Limited through its Director – K.Chandra Mouly.
6.The learned Counsel for the Petitioners in Crl.O.P.No.6573 of 2019
and the sole Petitioner in Crl.O.P.No.32282 of 2019 had submitted his
arguments. As per the submission made by the learned Counsel for the
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CRL.O.P.No.6573 of 2019
Petitioners, the Second Respondent/De-facto Complainant executed a Power
of Attorney in favour of A-3 – Tmt.Sujatha Mouli, wife of K.Chandra Mouly
and had approached her for loan for the hospital run by him under the name
of Jaya Hospital at Old No.8, New No.15, Velachery Main Road. For that,
Tmt.Sujatha Mouli-A3 in the Criminal Complaint is alleged to have
prevailed upon the De-facto Complainant/Second Respondent herein to
execute a Power of Attorney deed in her name so that she can arrange the
loan. After execution of the Power of Attorney, which was registered on the
file of the Sub Registrar, Mylapore, A-3-Tmt.Sujatha Mouli is alleged to
have executed a sale deed in favour of her husband K.Chandra Mouly, who
is arrayed as A-4 in the charge sheet. A-8 the Company had mortgaged the
property with M/s.India Bulls Housing Finance Limited. In the 8th Accused
Company, namely, M/s.Health Care Services Private Limited, A-3-
Tmt.Sujatha Mouli and A-4-K.Chandra Mouly are Directors. The said
Company had executed a mortgage deed with M/s.India Bulls Housing
Finance Limited. Since the outstanding dues through mortgage deed was not
cleared, the India Bulls Housing Finance Limited had caused public notice
bringing the property to sale by public auction wherein A-1-Sanjay A.
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CRL.O.P.No.6573 of 2019
Khanna, A-2-Mrs.Kanchan Amirlal Nichani and A-7 Mrs.Sheetal S. Khanna,
wife of Sanjay A. Khanna had cleared the dues and purchased the property.
The De-facto Complainant/Second Respondent herein is aware of the said
proceedings but he had suppressed those facts and preferred a Private
Complaint before the learned Chief Metropolitan Magistrate, Egmore,
wherein the learned Chief Metropolitan Magistrate had mechanically passed
orders directing the Central Crime Branch attached to the office of the
Commissioner of Police, Vepery, Chennai to register an FIR and investigate
the case. Based on the direction of the learned Chief Metropolitan
Magistrate under Section 156(3) of Cr.P.C., FIR in X.Crime No.153 of 2013
was registered by the Central Crime Branch under Sections 420, 406, 468
and 506(i) r/w. Section 120(b) of IPC. The Investigation Officer had
proceeded with the investigation and laid the final report before the Court of
the learned Additional Chief Metropolitan Magistrate, Egmore in
C.C.No.4651 of 2015 which was later transferred to the file of the learned
Special Metropolitan Magistrate for cases arising out of Central Crime
Branch and CB-CID cases, Egmore, Chennai and which was later numbered
as C.C.No.1923 of 2013. It is the submission of the learned Counsel for the
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CRL.O.P.No.6573 of 2019
Petitioners that there was a suit filed by the Accused-8 Company and
Accused-3 and 4 in the complaint before the learned Chief Metropolitan
Magistrate against the Complainant before the learned Chief Metropolitan
Magistrate Dr.J.Jaya Prasad before the original side of this High Court in
C.S.No.371 of 2011 which was later withdrawn. Only after execution of the
sale deed in favour of the A-1, A-3 and A7 by A-4-Mr.K.Chandra Mouly, the
husband of A-3, after 2½ years, the private complaint was lodged
suppressing the material facts. Therefore, the learned Counsel for the
Petitioners seeks to quash the FIR as it is nothing but an attempt by the De-
facto Complainant/Second Respondent herein to convert the civil dispute
into a criminal case only to cause harassment and to extract money from the
Petitioners herein. Also, the Second Respondent had received entire sale
consideration by way of three cheques. Only to cause harassment and to
extract more money from the petitioners, A-1, A-3, A-4, A-7, the criminal
case had been lodged by the De-facto Complainant/Second Respondent.
Therefore, the learned Counsel for the Petitioners seeks to quash the
C.C.Nos.4651 of 2015 and 1923 of 2917 pending on the file of the learned
Metropolitan Magistrate, Special Court for offences arising out of Central
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CRL.O.P.No.6573 of 2019
Crime Branch and CB-CID cases, Egmore, Chennai, as it is nothing but an
abuse of process of law.
7.Learned Counsel for the De-facto Complainant/Second Respondent
herein vehemently objected to quash the Charge Sheets stating that as it
involves committing fraud on the Second Respondent by misrepresenting
that A-3-Smt.Sujatha Mouli can get him loan for less interest from the
financier if the De-facto Complainant/Second Respondent executes a general
power of attorney in her favour. Believing her representation, the De-facto
Complainant had executed an general power of attorney which was
registered on the file of the Sub Registrar, Mylapore. Misusing the general
power of attorney executed by the De-facto Complainant/Second
Respondent herein, the Petitioner in Crl.O.P.No.32282 of 2019 –
Smt.Sujatha Mouli had executed a sale deed in favour of her husband A-4 in
C.C.No.1923 of 2017. Both husband and wife being Directors of the
Company, M/s.Health Care Services Private Limited, they had executed a
mortgage deed in favour of M/s.India Bulls Housing Finance Limited. The
De-facto Complainant/Second Respondent was kept in the dark regarding
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CRL.O.P.No.6573 of 2019
the said transactions and A-3 and A-4 had in turn executed sale deed in
favour of A-1, A-2 and A7 who are the Petitioners in Crl.O.P.No.6573 of
2019. Suspecting foul play and the Petitioner in Crl.O.P.No.32282 of 2019 –
Smt.Sujatha Mouli not responding to the De-facto Complainant's query
regarding loan, the De-facto Complainant/Second Respondent herein had
cancelled the power of attorney executed in her favour. Even after such
cancellation of power of attorney, ignoring the said act of the De-facto
Complainant, the Petitioner in Crl.O.P.No.32282 of 2019 – Smt.Sujatha
Mouli and her husband K.Chandra Mouly had executed a sale deed in favour
of A-1, A-2 and A-7 the Petitioners in Crl.O.P.No.6573 of 2019. The
Petitioner in Crl.O.P.No.32282 of 2019 and her husband with the help of
rowdy elements threatened the De-facto Complainant/Second Respondent
herein and entered into the hospital run by the De-facto Complainant/Second
Respondent herein. The rowdy elements had caused damage to the hospital
equipments and threatened the staff of the hospital and under duress and
threat and coercion, obtained the signature on the blank sheets which might
have been misused as sale deeds thereby causing loss of the property of the
De-facto Complainant/Second Respondent herein by his hard earned money
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CRL.O.P.No.6573 of 2019
which is in a prime location in Velachery, Chennai. Therefore, the De-facto
Complainant/Second Respondent herein was forced to initiate action through
the learned Chief Metropolitan Magistrate by filing a private complaint.
Based on the private complaint, the learned Chief Metropolitan Magistrate
had issued direction under Section 156(3) Cr.P.C. directing the Central
Crime Branch – CB-CID to register an FIR and proceed with the
investigation. Based on the said direction, the Central Crime Branch had
proceeded with the investigation. In the investigation, they had collected
sufficient materials incriminating the Accused 1 to 8. Based on the materials
collected by the Investigation Officer, a final report of the investigation was
laid before the Court of the learned Additional Chief Metropolitan
Magistrate, Egmore which was taken cognizance by the learned Additional
Chief Metropolitan Magistrate under Sections 420, 406, 468 and 506(i) r/w.
Section 120(b) of IPC. After registration of FIR, Mrs.Sujatha Mouli and her
husband K.Chandra Mouly absconded. Subsequently, they approached the
High Court and obtained anticipatory bail. At the time of laying the final
report, all the accused were absconding. Subsequently, they obtained bail.
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CRL.O.P.No.6573 of 2019
8.The learned Government Advocate (Crl. Side) Mr.S.Vinothkumar
had vehemently objected to the submission of the learned Counsel for the
Petitioners stating that what are all raised in the grounds of this petition to
quash final report in C.C. No.4651 of 2015 on the file of the learned
Additional Chief Metropolitan Magistrate which was later transferred to the
file of the Special Metropolitan Magistrate for cases arising out of Central
Crime Branch and CB-CID Team, Egmore, Chennai and renumbered as C.C.
No.1923 of 2017 are to be agitated before the trial Court. The learned
Government Advocate (Crl. Side) further submitted that there are enough
materials to incriminate the overt act committed by each of the Accused
which are to be tried by the learned Metropolitan Magistrate, Special Court
for offences arising out of cases investigated by the Central Crime Branch –
CB-CID. The grounds raised by the Petitioners in both the Criminal Original
Petitions cannot at all be considered by the Hon'ble High Court exercising
extraordinary power under Section 482 of Cr.P.C. to quash the criminal
complaint. The learned Government Advocate (Crl. Side) also submitted
that as per the guidelines issued by Hon'ble Supreme Court in State of
Haryana -vs- Bhajan Lal and another [(1992) SUPP (1) SCC 335] to the
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CRL.O.P.No.6573 of 2019
Hon'ble High Courts throughout India regarding using the extraordinary
power leniently and deprecated such practice also directing the Hon'ble High
Courts to use the extraordinary power sparingly. The guidelines issued in
the said judgment of the Hon'ble Supreme squarely applies to the facts of
this case. Here is a case where the De-facto Complaint, who is a Doctor by
profession, had been cheated by the Accused under the guise of obtaining
loan from finance companies for lesser interest, if the De-facto Complainant
executes the power of attorney deed in favour of the Petitioner in
Crl.O.P.No.32282 of 2019. After executing a power of attorney deed and
registering it in the office of the Sub Registrar, Mylapore, the Petitioner in
Crl.O.P.No.32282 of 2019, Mrs.Sujatha Mouli had executed a sale deed in
favour of her husband K.Chandra Mouly. Mrs.Sujatha Mouli and her
husband, both joined together executed a mortgage deed as Directors of the
Company – A-8 in favour of M/s.India Bulls Housing Finance Limited and
they had not informed the De-facto complainant about those transactions and
the mortgage amount was not repaid. Based on the said mortgage, the India
Bulls Housing Finance Limited brought the property for sale, in which, the
Petitioners in Crl.O.P.No.6573 of 2019, who are arrayed as A1, A2 and A7,
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CRL.O.P.No.6573 of 2019
had purchased the properties on the basis of the sale deed executed by A-3
and A-4 as though they had cleared the mortgage of Indian Bulls thereby
acquired the valuable property belonging to the De-facto complainant for a
throw away price. The second respondent suffered loss. The Petitioners in
both the petitions are alleged to have misappropriated the property and
obtained unlawful gain for an amount of Rs.13 Crores. Therefore, the
grounds of this quash petition is to be treated only as a valuable defence
available to the Petitioners herein which can be raised only during trial at the
time of adducing evidence and not at this stage by exercising extraordinary
power under Section 482 of Cr.P.C.
9.On consideration of the rival submissions of the learned Counsel for
the Petitioners, learned Counsel for the De-facto Complainant/Second
Respondent herein and learned Government Advocate (Crl. Side) for the
first Respondent and on perusal of the records, it is found that the
submission of the learned Counsel for the Petitioners cannot at all be
accepted in invoking the extraordinary power under Section 482 of Cr.P.C.
On perusal of the records, it is found that as rightly pointed out by the
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CRL.O.P.No.6573 of 2019
learned Government Advocate (Crl. Side) the property belonged to the De-
facto Complainant, Jaya Hospital at Velachery, the premises of the hospital
had been sold to the Petitioners in Crl.O.P.No.6573 of 2019 by the Petitioner
in Crl.O.P.No.32282 of 2019 by misusing the power. Whether she had
exercise the power, Whether the De-facto complainant had suppressed the
fact of sale executed by the Petitioner in Crl.O.P.No.32282 of 2019 after
having received the sale amount are all materials to be considered by
adducing evidence before the learned trial Judge and not by this Court by
exercising extraordinary power under Section 482 of Cr.P.C. It is to be noted
that the private complaint was preferred by the Second Respondent before
the learned Chief Metropolitan Magistrate, Egmore. Only on the direction of
the learned Chief Metropolitan Magistrate, FIR in X.Crime No.153 of 2013
was registered for the offences under Sections 420, 406, 468, 506(i) r/w.
Section 120(b) of IPC. In the course of the investigation, the Investigation
Officer had collected sufficient materials thereby laying the final report
before the Court of the learned Additional Chief Metropolitan Magistrate
which was taken cognizance by the learned Additional Chief Metropolitan
Magistrate and numbered as C.C.No.4651 of 2015 which was later
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CRL.O.P.No.6573 of 2019
transferred to the file of the Special Metropolitan Magistrate dealing with
cases arising from the investigation by Central Crime Branch and CB-CID.
If the Investigation Officer had found in the course of the investigation that
there are no sufficient materials to proceed with the investigation, he might
have referred the same as referred charge sheet, but he had not done so. He
had laid the final report placing the final report in which there are eight
accused and all the accused were shown as absconding accused. Only after
the said final report, the Petitioners herein had obtained bail by moving the
High Court. What are all raised by the learned Counsel for the Petitioners in
the grounds seeking to quash the final report in C.C.No.1923 of 2017 are to
be considered as valuable defence of the accused. As rightly pointed out by
the learned Government Advocate (Crl. Side), if this petition is allowed and
the final report of the investigation pending on the file of the Special
Metropolitan Magistrate for the cases dealing exclusively for cases arising
out of Central Crime Branch – CB-CID are quashed, it may result in
miscarriage of justice as per the ruling of the Hon'ble Supreme Court in
State of Haryana -vs- Bhajan Lal and another [(1992) SUPP (1) SCC 335]
and violations of the guidelines issued by the Hon'ble Supreme Court to the
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CRL.O.P.No.6573 of 2019
High Courts directing the High Courts to use extraordinary powers sparingly.
10.In the grounds of petition in Crl.O.P.No.32282 of 2019 the
Petitioner Smt.Sujatha Mouli had sought exemption from personal
appearance from the trial Court on the ground of her age and age related
health issues, if the Accused 1 to 8 files any Petition seeking exemption, the
learned Metropolitan Magistrate may consider it after following due
procedures after hearing the objection of the prosecution and the De-facto
complainant regarding exemption from personal appearance and may pass
appropriate orders. If there is no dispute regarding the identity of the
accused, the learned Metropolitan Magistrate may pass appropriate orders
stating that the identity of the accused shall not be taken as a valuable
defence when they are seeking exemption.
11.Since there are no merits in these Criminal Original Petitions, both
the Criminal Original Petitions are dismissed as having no merits. The
learned Metropolitan Magistrate, Special Court dealing with cases arising
out of cases investigated by the Central Crime Branch attached to the office
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CRL.O.P.No.6573 of 2019
of the Commissioner of Police, Chennai and CB-CID is directed to proceed
with the trial on day-to-day basis and dispose of the case within a period of
three months from the date of receipt of a copy of this order or from the date
of uploading of the order on the website of the High Court. The connected
Miscellaneous Petitions are closed.
12.If the Petitioners herein as accused 1 to 8 fails to co-operate with
the trial, the learned Metropolitan Magistrate, Special Court for cases arising
out of Central Crime Branch attached to the Commissioner of Police and
CBCID shall issue Non-Bailable Warrant. If the accused are produced on
execution of the warrant, the learned Metropolitan Magistrate, Special Court
for offences under Central Crime Branch – CB-CID shall remand them till
the disposal of the cases and proceed with the trial on day-to-day basis
thereby disposing of the case within a reasonable period of three months.
29.04.2022
Index: Yes/No
Speaking Order: Yes/No
sp/SRM
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CRL.O.P.No.6573 of 2019
To
1.The Additional Chief Metropolitan Magistrate Court,
Egmore, Chennai(CCB).
2.The Metropolitan Magistrate,
Special Court for CCB, CBCID Cases,
Egmore, Chennai.
3.The Public Prosecutor,
Madras High Court,
Chennai.
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CRL.O.P.No.6573 of 2019
SATHI KUMAR SUKUMARA KURUP, J.
SP/SRM
Crl.O.P.Nos.6573 & 32282 of 2019
and
Crl.M.P.Nos.17733 & 17735 of 2019
29.04.2022
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