Madras High Court
U.Saravanakumar vs R.Sivakumar on 17 August, 2022
Crl.O.P.No.6290 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.08.2022
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
Crl.O.P.No.6290 of 2022
and Crl.M.P.No.3525 & 3526 of 2022
1. U.Saravanakumar
2. U.Sabarikumar .. Petitioners / A3 & A4
Vs.
R.Sivakumar .. Respondent
Prayer: Criminal Original Petition filed under Section 482 of the Code of
Criminal Procedure to call for the records pertaining to the case in
C.C.No.9617 of 2021 pending on the file of the learned CCB & CBCID
Metropolitan Magistrate, Egmore, Chennai and quash the same.
For Petitioners : Mr.B.Arvind Srevatsa
For Respondent : Mr.N.Manoharan
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Crl.O.P.No.6290 of 2022
ORDER
This petition has been filed seeking to quash the proceedings in
C.C.No.9617 of 2021 pending on the file of the learned CCB & CBCID
Metropolitan Magistrate, Egmore, Chennai for the offences punishable under
Sections 420, 466, 467, 468 and 469 of IPC and Sections 81, 82(a) and 83 of
the Registration Act, 1908.
2. The petitioners are originally arrayed as A3 and A4. The defacto
complainant, A1 and A2 are brothers. Private complaint has been filed by one
of the brother who is a practicing lawyer and the second accused is a retired
police officer.
3. The crux of the allegation is that the father of the petitioners and the
defacto complainant purchased several properties and there were exchange of
properties and exchange deed was executed between the father of the
petitioners and one Rajammal. According to the defacto complainant the said
Rajammal is not the wife of T.K.Ramachandran, whereas, the mother of the
defacto complainant Mrs.Pattu is the wife of Mr.T.K.Ramachandran. After the
demise of Mrs.Pattu, with the help of Mrs.Rajammal sale deed dated
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Crl.O.P.No.6290 of 2022
15.10.2003 and settlement deed dated 23.06.2004 were executed. Therefore,
it is contended that the entire document has been created by impersonating the
mother of the defacto complainant.
4. The allegation against the present petitioners/A3 & A4 is that they
are beneficiaries of the document and hence they are sought to be prosecuted
for various offence.
5. Mr.B.Arvind Srevatsa, learned counsel appearing for the petitioners
would submit that the petitioners were minors at the time when the settlement
deed was executed on 23.06.2004. It is his contention that they are not parties
to the document and therefore the alleged conspiracy cannot be fastened on
the part of the petitioners/A3 and A4. The learned counsel further submitted
that a civil suit has also been filed assailing the said document and the same is
pending. The document has been executed in the year 2004 and there is
serious dispute between the brothers and the petitioners were unnecessarily
impleaded.
6. Whereas, Mr.N.Manoharan, learned counsel appearing for the
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Crl.O.P.No.6290 of 2022
respondent/defacto complainant would submit that the petitioners are
beneficiaries in those documents and therefore they should also be prosecuted.
He has also submitted that if the petitioners file an affidavit to the effect that
Mrs.Rajammal is not the mother of A1 and A2, he has no objection in
allowing this quash petition.
7. At the outset, this Court is unable to countenance the submissions
made by the learned counsel appearing for the respondent for demanding
affidavit as to the status of the parties which are in dispute and the same is
pending before a Civil Court. Such affidavit cannot be forced in a criminal
proceedings.
8. The only allegation against these petitioners is that they are
beneficiaries in the document stated to have been created by impersonation. It
is relevant to note that it is not disputed that at the time of execution of the
documents the so called sale deed and settlement deed, these petitioners were
minors aged 11 and 8 years respectively and they are not parties to the
document. They were only shown as beneficiaries in the document said to
have been executed by one Mrs.Rajammal and A1 and A2. Therefore, merely
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Crl.O.P.No.6290 of 2022
they are shown as beneficiaries and they are not parties to the documents, the
allegation of conspiracy cannot be fastened against them. Further, there is no
material to contend that these petitioners were parties to the conspiracy to
cheat the respondent / defacto complainant. Further to attract the other
offence under Section 420, 466, 467, 468 & 469 of IPC, the creation of forged
document and forgery should be established.
9. Even the complaint itself indicate that these petitioners are not the
authors of the documents and the documents were executed when they were
minors. Therefore, none of the offence is made out against the petitioners.
Such view of the matter, continuing the prosecution against the petitioners is
nothing but abuse of process of law.
10. Further, the learned counsel appearing for the respondent/defacto
complainant relied on a judgment of the Hon'ble Supreme Court in Ritesh
Agarwal Vs. Securities and Exchange Board of India reported in (2008) 8
SCC 205 to contend that even minors can be penalized for the offence
committed and he has laid much emphasized on paragraph 29, which is
extracted hereunder:
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Crl.O.P.No.6290 of 2022
"29. Ritesh Agarwal and Deepak Agarwal
are said to be minors. As they were minors having
regard to the provisions of the Indian Contract
Act, they could not have been proceeded against
strictly in terms of the provisions of the said Act.
Apart from the actions taken by the Board, the
persons who undertook those fraudulent actions
may also be held to be guilty of making a mis-
representation and commission of fraud not only
before the prospective purchasers of the shares
but also before the statutory authority. The same,
however, would itself not mean that a minor would
not be penalized for entering into a contract which
per se was not enforceable. A contract must be
entered into by a person who can make a promise
or make an offer. If he cannot make an offer or in
his favour an offer cannot be made, the contract
would be void as an agreement which is not
enforceable in law would be void. Section 11 of the
Indian Contract Act provides that the person who
is competent to contract must be of the age of
majority. If Ritesh Agarwal and Deepak Agarwal
were minors, as would appear from their birth
certificates, they could not have entered into the
contract."
11. In fact, in that case, minor was party to the contract and therefore
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Crl.O.P.No.6290 of 2022
the same will not be applicable to the present case, whereas, in this case the
minors are only beneficiaries and not parties to the deed.
12. Such view of the matter, continuing the prosecution is nothing but
an abuse of process of law as against the petitioners herein and accordingly
this petition is allowed and the proceedings in C.C.No.9617 of 2021 pending
on the file of the learned CCB & CBCID Metropolitan Magistrate, Egmore,
Chennai is quashed as against these petitioners herein and the trial Court shall
proceed with the case as against the other accused. It is made clear that the
observations made in this petition is confined only to the petitioners herein.
Consequently, the connected miscellaneous petitions are closed.
17.08.2022
kk
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Crl.O.P.No.6290 of 2022
N.SATHISH KUMAR, J.
kk
Crl.O.P.No.6290 of 2022 and
Crl.M.P.No.3525 & 3526 of 2022
17.08.2022
https://www.mhc.tn.gov.in/judis
