Madras High Court
Seenivasulu Naidu vs The State Rep. By on 31 January, 2022
Crl.O.P.No.27431 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :31.01.2022
CORAM
THE HONOURABLE MR.JUSTICE V. BHARATHIDASAN
Crl.O.P.No.27431 of 2015
and
M.P.No.1 of 2015
1. Seenivasulu Naidu
2. Ranganathan
3. Kalamani ... Petitioners
Vs
1. The State rep. by
Sub-Inspector of Police,
District Crime Branch,
Coimbatore District.
2. Backiyam,
W/o. Rajarathinam ... Respondents
(the 2nd respondent is impleaded as per
the order of this Court made in
M.P.No.3 of 2015, dated 27.11.2015 )
1/12
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Crl.O.P.No.27431 of 2015
The Criminal Original Petition is filed under Section 482 of Cr.P.C.
to call for the records relating to the complaint in C.C.No.310 of 2015 on
the file of the Judicial Magistrate No.VII, Coimbatore and quash the same
as far as the petitioners are concerned.
For petitioners ... Mr. M.S.I. Abrar Md Abdullah
For respondents ... Mr. C.E.Pratap,
Government Advocate,
for R1
... Mr. S. Thangavel,
for R2
ORDER
The Criminal Original Petition has been filed to quash the criminal
proceedings in C.C.No.310 of 2015 pending on the file of the learned
Judicial Magistrate No.VII, Coimbatore, against the petitioners.
2. Totally, there are 4 accused and the petitioners are arrayed as A1
to A3 and they stood charged for the offences under Sections 120(b), 420
and 424 of IPC.
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Crl.O.P.No.27431 of 2015
3. The case of the prosecution is that, one Seenivasulu Naidu, who is
arrayed as A1, is the original owner of the property in Survey Nos.478/3A1,
478/2, 476, 477/2, to an extent of 5.61 acres in Appanaiyakkanpatti Pudur,
Sulur, and other accused are legal heirs of A1. On 14.11.1997 and
29.10.2001, all the accused executed two power of attorneys in favour of the
de-facto complainant and the same was also registered. Along with the
power of attorney, they have also given an undertaking affidavit stating that
they will not cancel the power of attorney, also stated that they have
received the entire value of the property to the tune of Rs.3,70,260/-.
Thereafter, with an intention to cheat the de-facto complainant, the accused
persons have cancelled the above said power deeds on 22.05.2008 without
her knowledge. Alleging that all the accused conspired together and in
furtherance of the conspiracy, they have cancelled the power of attorney,
and they committed the offence. Based on a complaint, the crime was
registered and after investigation, final report has been filed for the above
said offences and the same was also taken cognizance by the concerned
Magistrate. Now, to quash the same, the present petition has been filed.
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Crl.O.P.No.27431 of 2015
4. Mr.I.Abrar and Abdullah, learned counsel appearing for the
petitioners/accused submitted that admittedly, the petitioners are the owners
of the property and they have executed a power of attorney in favour of the
defacto complainant. Since the power of attorney holder has violated some
of the conditions in the power deed, they have cancelled the same, after duly
informing the same to the defacto complainant. After cancellation of power
deed the de-facto complainant sold the property in favour of third party and
thereby she had committed offence. In order to get away from the same, the
present complaint has been filed.
5. The learned counsel further submitted that, all the petitioners have
filed a suit in O.S.No.50 of 2011, on the file of the District Munsif Court,
Palladam, for declaration declaring that the sale deed dated 10.12.2010
registered as document no.11272/2010 on the file of the Sub Registrar's
office, Sulur, is void ab-initio and also consequential declaration that the
petitioners are the absolute owners of the property. Likewise, one
Rajarathina, husband of the defacto complainant also filed a suit in
O.S.No.967 of 2013 on the file of the District Munsif, Coimbatore, for
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Crl.O.P.No.27431 of 2015
declaration that he is the owner of the property and also for permanent
injunction, but the same was dismissed for non prosecution. It is only a
civil dispute between the parties, but a criminal colour has been given to it.
Hence, to quash the same, the present complaint has been filed.
6. He further submitted that the petitioners have not received any
consideration at the time of executing the power of attorney and they have
not executed any understanding affidavit in favour of the de-facto
complainant. Even assuming that, any such undertaking affidavit is there,
and any breach will not gives rise to a criminal offence. No primafacie case
is made out against the petitioners and the complaint has been filed in total
abuse of process of law.
7. The learned counsel appearing for the respondent/de-facto
complainant, submitted that, the petitioners, being the owners of the
property, after receiving the entire sale consideration for the property,
executed two power of attorneys in her favour and along with the power of
attorney, they have also executed a deed of undertaking stating that they
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Crl.O.P.No.27431 of 2015
will not cancel the power and also admitting that they have received the
entire value of the property. Thereafter, without any notice to the defacto
complainant, with an intention to cheat the petitioners, accused unilaterally
cancelled the power of attorney. Without knowing the fact that the power of
attorney was cancelled, the defacto complainant sold the property to third
party. According to the defacto complainant, it is not a civil dispute
between the parties. The petitioners have executed a power of attorney only
with an intention to cheat the defacto complainant. The materials available
on records clearly makes out the offence, and, the learned Judicial
Magistrate rightly taken cognizance and issued process .
8. The learned Government Advocate (crl. side) appearing for the
petitioners submitted that the materials available on records clearly makes
out an offence under Sections 120(b), and 420 IPC, and there is no ground
made out to prove the same.
9. This Court considered the rival submissions made on either side
and perused the materials available on records carefully.
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Crl.O.P.No.27431 of 2015
10. There is a clear distinction between a breach of contract and the
offence of cheating. To establish the cheating, there must be materials to
show that the accused have fraudulent and dishonest intention right from the
beginning to cheat the defacto complainant and mere cancellation of power
of attorney, without any intention to cheat the complainant, will not give
rise to offence under Section 420 of IPC.
11. The Hon'ble Supreme Court in the case of Hridaya Ranjan
Prasad Verma and others /vs/ State of Bihar and another reported in
2000(4) Supreme Court Cases 168 has held as follows :
"15. In determining the question it has to be
kept in mind that the distinction between mere breach
of contract and the offence of cheating is a fine one. It
depends upon the intention of the accused at the time
of inducement which may be judged by his subsequent
conduct but for this subsequent conduct is not the sole
test. Mere breach of contract cannot give rise to
criminal prosecution for cheating unless fraudulent or
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Crl.O.P.No.27431 of 2015
dishonest intention is shown right at the beginning of
the transaction, that is the time when the offence is
said to have been committed. Therefore, it is the
intention which is the gist of the offence. To hold a
person guilty of cheating, it is necessary to show that
he had fraudulent or dishonest intention at the time of
making the promise. From his mere failure to keep up
promise subsequently such a culpable intention right
at the beginning, that is, when he made the promise
cannot be presumed. "
12. Keeping the above principle in law, this Court considered the
instant case. The power of attorney has been executed as early as on
14.11.1997 and 29.10.2001. It is the case of the de-facto complainant that
at the time of executing the power of Attorney, he has paid the entire value
of the property. That apart, the accused have also given an affidavit of
undertaking that they will not cancel the power and also admitted that they
have received the entire consideration. After receipt of the entire sale
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Crl.O.P.No.27431 of 2015
consideration and also executing the undertaking, all the accused
unilaterally cancelled the power with an intention to cheat him. Admittedly,
after cancellation of the power of attorney, the de-facto complainant also
executed a sale deed in favour of the third party. From the materials
available on records including the complaint and sworn in statement
statement of the defacto complainant, nothing available to show that, the
petitioners had dishonest and fraudulent intention to cheat the defacto
complainant, right from the execution of the power of attorney. Apart from
that, it is also pertinent to note that, the power of attorney was executed in
the year 1977, and the same was cancelled in the year 2008, after 30 years
of the execution of the power of attorney. That apart, now both the parties
are also before the Civil Court, the accused filed a suit to set aside the sale
deed and the de-facto complainant also filed a suit for declaration of title
and the cancellation of the power of attorney despite the undertaking is
valid or not should be decided by the Civil Court.
13. The learned counsel for the de-facto complainant relied upon
number of judgments to show that when the fact of the case give rise to the
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Crl.O.P.No.27431 of 2015
civil liability as well as the criminal offence, there is no bar to initiate
criminal proceedings. However, absolutely, there is no materials to show
that the petitioners have an intention to deceive the de-facto complainant.
Hence, it is purely civil dispute and it should be resolved by the civil Court.
14. So far as the offence under Section 420 of IPC is concerned, this
Court already finds that there is no materials available on record to show
that the petitioners had intention to cheat the de-facto complainant right
from the inception. Hence, no case has been made out to bring home the
offence under Section 420 of IPC.
15. To bring home an offence under Section 120(b) of IPC, there
must be some materials to show that there was a meeting of mind between
the parties to commit any illegal act and in furtherance of the same, they
have committed illegal act. But, absolutely there is no materials for the same
and hence, the charge under Section 120(b) IPC is also liable to be quashed.
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Crl.O.P.No.27431 of 2015
16. Considering the facts and circumstances, this Court is of the view
that primafacie case is not made out as against the petitioners and hence, the
criminal proceedings are liable to be quashed.
17. Accordingly, this Criminal Original Petition is allowed and the
case against the petitioners in C.C.No.310 of 2015 on the file of the Judicial
Magistrate No.VII, Coimbatore, is quashed. Consequently, connected
miscellaneous petition is closed.
31.01.2022
Index: Yes/ No
Speaking Order/Non-speaking Order
mrp
To
1. The Judicial Magistrate No.VII,
Coimbatore,
2. The Public Prosecutor,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.27431 of 2015
V. BHARATHIDASAN, J.
mrp
Crl.O.P.No.27431 of 2015
31.01.2022
https://www.mhc.tn.gov.in/judis
