Madras High Court
Aathi Sankar vs State Through on 28 February, 2022
Crl.O.P.(MD)No.3115 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28/02/2022
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.O.P.(MD)No.3115 of 2019
and
Crl.MP(MD)No.1741 of 2019
Aathi Sankar : Petitioner/A1
Vs.
1.State through
The Inspector of Police,
City Crime Branch ,
Madurai District.
(Crime No.29 of 2018) : R1/Complainant
2.L.P.Brindha (Died) : R2/De-facto complainant
T.R.Krishnaram
(R2 substituted as per the
order of this court, dated
12/01/2022 in Crl.MP(MD)
No.11473 of 2021 in Crl.
OP(MD)No.3115 of 2019)
3.Balakrishna Nadar : R3/9th Accused
Prayer:Criminal Original Petition is filed under
Section 482 Cr.P.C. to quash the FIR in Crime No.29 of
2018, dated 09/08/2018 on the file of the 1 st
respondent as
against this petitioner.
For Petitioner : Mr.G.Prabhu Rajadurai
For 1st Respondent : Mr.SS.Madhavan
Government Advocate (Crl. Side)
For 2nd Respondent : Mr.T.K.Gopalan
1/12
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Crl.O.P.(MD)No.3115 of 2019
O R D E R
This criminal original petition has been filed seeking
quashment of FIR in Crime No.29 of 2018 on the file of the
1st respondent.
2.The case of the prosecution in brief:-
The de-facto complainant has lodged a complaint
stating that she saw a notice board near her husband's
office, wherein it has been mentioned that the owner of the
property is one Aathisankar, who is A1 herein. So in
August, 2020, the de-facto complainant along with her
husband approached A1 and entered into a sale agreement and
subsequent sale deed was also registered in the name of the
de-facto complainant through 3 separate sale deeds for
three separate portions. The full amount was received by
A1. In the above said documents, A2 and A7 signed as
identifying witnesses and A2, A3 and A4 also signed as
witnesses. After purchase, the de-facto complainant was in
possession and enjoyment. Later, it came to know that
against A1, Mookaiah Nadar has given a complaint in 2002
and she was also enquired. Only during the course of
enquiry, it came to her knowledge that A1 impersonated the
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Crl.O.P.(MD)No.3115 of 2019
real owner and sold the property. During the course of
enquiry, it was found that A1 introduced A3 as Mookaiah
Nadar. So on the basis of the above said investigation, a
case in Crime No.29 of 2019 was registered and he has also
tried in CC No.287 of 2002 before the concerned court.
During the course of the above said trial process, Mookaiah
Nadar filed an affidavit stating that the matter was
compromised between them in the presence of elders. The
entire money was paid to the de-facto complainant and the
case ended in acquittal. So again a complaint was given by
this petitioner before the Assistant Commissioner of
Police, District Crime Branch and during the course of the
above said enquiry, 8th accused, who is the son of the above
said complainant namely Mookaiah Nadar has issued a cheque
for a sum of Rs.5,89,000/- drawn on ICIC Bank bearing
registration No.159097, dated 05/06/2006. That cheque was
presented for payment. Later that was dishonoured. Only in
order to cheat the de-facto complainant, the above said
compromise has been reached between the accused persons and
the de-facto complainant and even the cheque, which was
issued by A9 was dishonoured.
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Crl.O.P.(MD)No.3115 of 2019
3.Later the de-facto complainant filed a suit in O.S
No.463 of 2009 before the District Munsif Court, Madurai
Town and in the trial process, expert opinion has also been
obtained, wherein it has been clearly mentioned that it is
a case of cheating. Since no proper action was taken on the
basis of the complaint given by the de-facto complainant,
she approached the Judicial Magistrate No.1, Madurai under
section 156(3) Cr.P.C. Based upon the complaint, the
present FIR has been registered against 9 persons.
4.Seeking quashment of the same, this petition has
been filed by A1 namely P.Aatisankar. A specific allegation
against this petitioner is that he only introduced A3 as
the real owner. So on the basis of the complaint given by
the de-facto complainant, a case in Crime No.61 of 2002 has
been registered on 30/05/2002 and CC No.287 of 2002 has
been initiated. This is admitted by the de-facto
complainant as well as this petitioner.
5.The ground on which, this petition came to be filed
is that CC No.287 of 2002 ended in compromise and later, on
the basis of the complaint given by the de-facto
complainant, enquiry was taken by the ADSP, DCB, Madurai
and during the course of the above said enquiry, again
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Crl.O.P.(MD)No.3115 of 2019
compromise has been reached, by which, A9 who is the son of
Mookaiah Nadar has given a cheque for the above said sale
amount. Again, there was a compromise, which also failed
because of the dishonour of the cheque. So also filed a
suit in O.S No.463 of 2009 against the Mookaiah Nadar,
M.Balakrishnan and Aathi Sankar for declaration declaring
that the settlement deeds in respect of the plot No.6
executed by Mookaiah Nadar in favour of Balakrishna Nadar
is null and void and later, that suit came to be dismissed
due to non-prosecution.
6.The learned counsel appearing for the petitioner has
raised a simple issue, since there was a compromise between
the parties, on basis of the complaint given by the de-
facto complainant, even though that compromise failed,
because of the dishonour of the cheque and other things,
the remedy available to the de-facto complainant is only to
proceed against A9 namely Balakrishna Nadar for violation
of the agreement and compromise. So, again fallback against
the cause of action and filed a complaint stating the
subject matter of CC No.287 of 2002.
7.In the light of the above facts, the learned counsel
for the petitioner submitted that the FIR in Crime No.29 of
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Crl.O.P.(MD)No.3115 of 2019
2018 is liable to be quashed as against the petitioner.
When this issue was raised by the learned counsel appearing
for the petitioner, I sought specific response from the
learned Government Advocate (Criminal side) and the 2nd
respondent. According them, it is a big conspiracy took
place between the parties. This petitioner is also one of
the conspirators and he must be proceeded in accordance
with law.
8.No doubt that it is a serious case of impersonation,
cheating etc. Even though the matter has been compromised
between the original de-facto complainant and other accused
persons in CC No.287 of 2002, but subsequently, a specific
complaint has been made by the petitioner before the
District Crime Branch and in that complaint only, as
mentioned above, compromise has been reached between
herself and A9 herein towards which also received a cheque
and that cheque has been dishonoured, over which she has
also filed a criminal complaint. Apart from that, she has
also filed a suit. So, without going into the other merits
of the case, I am of the considered view that this matter
can be disposed of with the above said short point.
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Crl.O.P.(MD)No.3115 of 2019
9.The Hon'ble Supreme Court in the case of Gimpex
Private Limited Vs. Manoj Goel (2021(4) MLJ (Crl) 610) had
an occasion to deal with the similar issue, of course,
which arose out of the proceedings under section 138 of the
Negotiable Instruments Act. In that case, there was a
transaction between the parties, over which, the cheque was
issued and that came to be dishonoured. There was a
compromise between the parties, by which for the above said
dishonour, another cheque was also issued. That cheque was
also presented for payment. Again it was dishonoured. So
again for both the above said cause of actions, separate
proceedings were initiated by the complainant. That was the
matter for consideration before the Hon'ble Supreme Court.
The Hon'ble Supreme Court was of the considered view that
in such a situation, when there was a compromise with
regard to one cause of action, if it fails, only that cause
of action can be proceeded and not the original cause of
action. Paragraphs 45 and 46 are relevant for our
discussion, which would run thus:-
“45.Based on the discussion above, in
our opinion, once the compromise deed dated
12 March 2013 was agreed, the original
complaint must be quashed and parties must
proceed with the remedies available in law
under the settlement agreement.
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Crl.O.P.(MD)No.3115 of 2019
46.Once a settlement agreement has
been entered into between the parties, the
parties are bound by the terms of the
agreement and any violation of the same may
result in consequential action in civil and
criminal law.”
10.This observation can be read conjointly with the
observation of the Hon'ble Supreme Court. In para 38, it
has been observed like this.
“38 When a complainant party enters into a
compromise agreement with the accused, it may be for
a multitude of reasons – higher compensation, faster
recovery of money, uncertainty of trial and strength
of the complaint, among others. A complainant enters
into a settlement with open eyes and undertakes the
risk of the accused failing to honour the cheques
issued pursuant to the settlement, based on certain
benefits that the settlement agreement postulates.
Once parties have voluntarily entered into such an
agreement and agree to abide by the consequences of
non-compliance of the settlement agreement, they
cannot be allowed to reverse the effects of the
agreement by pursuing both the original complaint
and the subsequent complaint arising from such non-
compliance. The settlement agreement subsumes the
original complaint. Non-compliance of the terms of
the settlement agreement or dishonour of cheques
issued subsequent to it, would then give rise to a
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Crl.O.P.(MD)No.3115 of 2019
fresh cause of action attracting liability
under Section 138 of the NI Act and other remedies
under civil law and criminal law.”
11.These observations of the Hon'ble Supreme Court has
given more clarity to the discussion. The Hon'ble Supreme
Court has opined that the settlement arrived between the
parties subsumes the original complaint and the non
compliance of the terms of the settlement will give a fresh
cause of action. So when we apply the analogy to the
present case, as rightly pointed by the learned counsel
appearing for the petitioner, the only remedy available to
the petitioner is to pursue for the violation of the
agreement.
12.At the conclusion portion of the argument, learned
counsel appearing for the petitioner has submitted that in
respect of the dispute between A9 and the petitioner
herein, they may work out their possibility of settlement.
But even during the course of argument, it was represented
by the petitioner that the 3rd respondent also died and he
was also impleaded as a formal party. Even now the
petitioner is not remediless, she can proceed against the
legal representatives of the 9th accused, who is the 3rd
respondent herein.
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Crl.O.P.(MD)No.3115 of 2019
13.Even though the during the course of argument, the
learned counsel appearing for the petitioner has submitted
that the offences under sections 465, 468 and 420 IPC are
not attracted in view of the judgment of the Hon'ble
Supreme Court in the case of Mohammed Ibrahim Vs. State of
Bihar and another [(2009)8 SCC 751], against this
petitioner. But in the light of the above said discussion,
I am not going into those issues.
14.In the result, this criminal original petition
stands allowed. The FIR in Crime No.29 of 2018 is hereby
quashed as against this petitioner. Consequently, connected
Miscellaneous Petition is closed.
28.02.2022
Internet:Yes/No
Index:Yes/No
er
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.3115 of 2019
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
Crl.O.P.(MD)No.3115 of 2019
G.ILANGOVAN,J.,
Crl.O.P.(MD)No.3115 of 2019
28/02/2022
https://www.mhc.tn.gov.in/judis
