Madras High Court

M.Thangavel vs State Represented By The on 29 June, 2022

                                                                                  CRL.O.P. No. 17800 of 2020


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 29.06.2022

                                                          CORAM:

                             THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN

                                              CRL.O.P. No.17800 of 2020
                                                         and
                                           Crl.MP. Nos.6942 & 6943 of 2020

                1.M.Thangavel
                2.K.Govindaraj
                3.G.Ganapathy                                                  ... Petitioners

                                                           Vs.

                1.State Represented by the
                  Inspector of Police,
                  District Crime Branch
                  (Anti Land Grabbing Unit),
                  Salem.

                2.S.Murugesan                                                  ... Respondents

                Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C. praying to
                call for the entire records in S.C.No.171 of 2019 from the file of the Principal
                District and Sessions Court, Salem and quash the same.

                                        For Petitioners     : Mr.D.Shivakumaran

                                        For Respondents
                                            For R1          : Mr.A.Gopinath
                                                              Government Advocate (Crl. Side)

                                           For R2           : Mr.N.Manokaran


https://www.mhc.tn.gov.in/judis
                1/18
                                                                                 CRL.O.P. No. 17800 of 2020




                                                        ORDER

This petition has been filed to quash the proceedings in S.C.No.171 of

2019, on the file of the Principal District and Sessions Court, Salem, for the

offences punishable under Sections 120-B, 369, 386, 420, 457, 447, 468, 471

and 506(ii) IPC r/w Section 3(i) of Tamil Nadu Property Prevention of Damage

and Loss Act, 1992.

2. The case of the prosecution is that one Sadayan, the father of the 2nd

respondent had acquired the land, comprised in Survey No.360/1 situated at

Katchupalli Village, Edapadi Taluk, Salem District, by a Sale Deed dated

09.02.1981 vide Document No.176/1981. The father of the 2nd respondent had

two sons. The first son is the 2nd respondent herein and the second son is one

Chinnusamy, who died on 04.03.1999 in a road accident. While that being so,

the said Sadayan executed first Settlement Deed in favour of the 2nd respondent

on 12.07.2000 in respect of 50% share of the property registered by Document

No.1175/2000 along with bore well. By way of another Settlement Deed, he

also settled the remaining property in favour of the 2nd respondent herein

registered vide Doc.No.1259/2006 dated 24.06.2006.

https://www.mhc.tn.gov.in/judis

CRL.O.P. No. 17800 of 2020

3. While that being so, the accused persons trespassed into the house of

the said Sadayan, who is the father of the second respondent on 03.08.2007 with

an intention to grab the entire property which were settled in favour of the 2nd

respondent herein. Further, on 05.09.2007 the accused persons kidnapped and

threatened the second respondent's father to cancel the said settlement deeds

which was registered in favour of the second respondent and on compulsion, he

executed cancellation of Settlement Deeds, which was registered as

Doc.No.2891/2007 on 06.07.2007. Thereafter, on the same day, he registered a

Sale Deed in favour of A2 and A3 in respect of entire property which was

registered as Doc.No.2892/2007. Thereafter, A2 and A3 executed Sale Deed on

03.10.2007 by Doc.No.3260/2007 in favour of the accused 4 to 6 namely the

petitioners herein. In turn, the petitioners namely A4 to A6, executed Sale Deed

in favour of the 1st accused on 13.11.2009 registered as Doc.No.4314/2009.

4. According to the prosecution, all the accused persons conspired and

fabricated forged documents and executed Sale Deed in favour of the 7th accused

as if the 2nd respondent and his family members had executed Sale Deed on

https://www.mhc.tn.gov.in/judis

CRL.O.P. No. 17800 of 2020

24.11.2009 registered as Doc.No.4511/09. Thereafter, the 7th accused executed

Sale Deed in favour of the accused 1, 8, 9, 10 on 24.11.2009 registered as

Doc.No.4528/09. Thereafter, on the strength of the both the Sale Deeds, all the

accused persons have trespassed into the house of the said Sadayan, the father

of the second respondent on 23.09.2007 and again on 04.11.2007, they

threatened the said Sadayan to vacate the house premises and hand over vacant

portion of the said land to them. Again on 23.09.2011, all the accused persons

went to the house of the said Sadayan and the 2nd respondent herein and also

demolished the entire house, cut down all the trees and forcibly taken possession

of the subject property.

5. The learned counsel for the petitioners submitted that the petitioners are

arrayed as accused 4 to 6 and the father of the 2nd respondent namely Sadayan

executed a Sale Deed in their favour on 06.09.2007 by Doc.No.2892/2007.

After cancelling the Settlement Deeds executed in favour of the 2nd respondent

herein, by the cancellation Deed dated 06.09.2007 vide Doc.No.2891/2007, on

the same day, a Sale Deed in favour of the A2 and A3 came to be executed by

the said Sadayan, and also by his daughter-in-law, viz wife of the deceased son

namely Chinnusamy, which was registered as Doc.No.2892/2007.

https://www.mhc.tn.gov.in/judis

CRL.O.P. No. 17800 of 2020

6. In turn, A2 and A3 executed Sale Deed in favour of the petitioners

herein namely A4 to A6 registered by Doc.No.3260/2007 dated 03.10.2007.

Thereafter, the petitioners executed Sale Deed in favour of the 1st accused by the

registered Sale Deed dated 13.11.2009 by Doc.No.4314/2009. Therefore, the

petitioners have nothing to do with the case of the prosecution as alleged by the

2nd respondent herein. He further submitted that they also filed three suits

between 2007 to 2009, with regard to the land in dispute and by way of

settlement of two suits, all the accused persons were brought in at the instance

of the first accused. If the occurrence as alleged in three complaints, for the

occurrence in the year 2007-2009, are really true, the 2nd respondent would have

definitely prosecuted this case further in the manner known to law. Whereas, the

present complaint has lodged only on 28.07.2011 for the occurrence which took

place in the year 2007 -2009. According to the defacto complainant, the first

occurrence is in the year 2009, the said complaint has been made on 28.07.2011.

7. According to the petitioners, there is absolutely no explanation for the

belated complaint lodged by the complainant. He further submitted that earlier

for occurrence took place in the year 2007 already the father of the 2nd

https://www.mhc.tn.gov.in/judis

CRL.O.P. No. 17800 of 2020

respondent lodged complaint and the same has been registered in Crime No.429

of 2007 for the offence under Sections 147, 363, 383, 342 and 506(ii) IPC. It

was enquired and closed as 'mistake of fact'. Suppressing the earlier complaint,

for the very same cause of action, a case has been foisted against all the accused

persons. Even assuming that the alleged occurrence took place on 24.11.2009,

the petitioners had already sold out the subject property by the registered sale

deed dated 13.11.2009 in favour of the first accused. According to the

petitioners, they never indulged in any course of action as alleged by the

prosecution. He relied upon the judgment reported in (2021) 5 SCC 435 in

respect of registration of two FIRs for the very same occurrence.

8. Per contra, the learned counsel for the second respondent submitted

that all the accused persons have committed very serious offence as against the

de-facto complainant. The father of the de-facto complainant originally

purchased the subject property in the year 1981, thereafter he executed two

settlement deeds in favour of the second respondent herein. Further, his father

was kidnapped and threatened and his signature was forged and executed the

cancellation of settlement deeds. On the same day, he executed sale deed in

favour of A2 and A3 on 06.09.2007. In turn, a sale deed came to be executed in

https://www.mhc.tn.gov.in/judis

CRL.O.P. No. 17800 of 2020

favour of the petitioners herein on 03.10.2007 vide Doc.No.3260 of 2007.

9. Therefore, all the accused persons combined together and committed

very serious offence as against the de-facto complainant. In fact, immediately

after the first occurrence which took place in the year 2007, the father of the

second respondent lodged a complaint in Crime No.429 of 2007 and he filed a

direction petition before this Court in Crl.O.P.No.35480 of 2007 for transfer of

investigation. Accordingly, the investigation has been transferred to the Inspector

of Sangagiri Police Station and the same was closed on 21.05.2009. Further, on

24.11.2009 again the accused persons trespassed into the property and

ransacked the entire property of the de-facto complainant. Therefore,

immediately the father of the second respondent lodged complaint. Thereafter,

on 25.11.2009 again they came to the defacto complainant's house and by using

un-numbered JCB vehicle and tractor, removed the property which was already

trespassed by the accused persons and forcibly taken possession of the subject

property.

10. Therefore, immediately the father of the second respondent lodged

https://www.mhc.tn.gov.in/judis

CRL.O.P. No. 17800 of 2020

complaint on 25.11.2009 and it was not registered. Therefore, there is absolutely

no delay on the part of the defacto complainant and he lodged complaint

immediately after the occurrence. He also relied upon the judgment reported in

(2021) 9 SCC 35, with regard to exercise of power under Section 482 Cr.P.C.,

of this Court while quashing FIR and charge sheet.

11. The learned Government Advocate (Crl. Side) submitted that there are

specific allegations against all the accused persons and it is the continuous

offence from the year 2007 and as such it cannot be quashed. That apart, there

are so many witnesses examined and all of them have spoken categorically and

all the persons got specific over tact as per the charge sheet.

12. Heard Mr.D.Shivakumaran, learned counsel for the petitioner,

Mr.A.Gopinath, learned Government Advocate (Crl. Side) appearing for the first

respondent and Mr.N.Manokaran, learned counsel appearing for the second

respondent and perused the materials available on record.

13. On a perusal of the charge sheet, it revealed that originally the

property comprised in S.No.360/1 to an extent of 4.58 acres was purchased by

https://www.mhc.tn.gov.in/judis

CRL.O.P. No. 17800 of 2020

the second respondent's father Sadayan by the registered sale deed dated

09.02.1981 as Doc.No.176 of 1981. Thereafter, he executed two settlement

deeds in favour of the second respondent herein in Doc.No.1175 of 2000 dated

10.07.2022 and vide Doc.No.1295 of 2006 dated 24.06.2006.

14. According to the case of the prosecution, the father of the second

respondent had two sons namely the second respondent and one Chinnusamy.

The said Chinnusamy, died due to road accident and thereafter his wife colluded

with the other accused persons, kidnapped the father of the second respondent

on 06.09.2007 compelled him by threatening with dire consequences, forged his

signature and executed a cancellation of settlement deeds and registered a sale

deed in favour of A2 and A3 vide Doc.No.2892 of 2007. In turn, the said A2 and

A3 executed the sale deed in favour of the petitioners herein by creating forged

documents on 03.10.2007. In turn, the petitioners executed sale deed in favour

of the first accused on 24.11.2009 vide Doc.No.4511 of 2009.

15. In so far as the another settlement deed is concerned, they cancelled

and executed sale deed in favour of the seventh accused by the second

respondent and his family members. The entire sale deed has been fabricated

https://www.mhc.tn.gov.in/judis

CRL.O.P. No. 17800 of 2020

and executed in favour of the seventh accused. In turn, the seventh accused

executed sale deed in favour of A1, A8, A9 and A10 by registered sale deed

dated 24.11.2009 vide Doc.No.4528 of 2009. In so far as the first occurrence is

concerned, the father of the second respondent lodged complaint and the same

was registered in Crime No.429 of 2007 for the offence under Sections 147,

363, 383, 342 and 506(ii) IPC.

16. In fact, on the petition filed by the father of the second respondent,

investigation has been transferred and thereafter it was closed as 'mistake of

fact'. Again in the year 2009, all the accused persons were taken possession of

the property which was well within the possession of the second respondent's

father. While that being so, again on 24.11.2009 the first accused and other

accused persons trespassed into the defacto complainant's property and ransack

the entire property and cut down all the trees. Again on 25.11.2009 they

trespassed into the property and damaged the entire property and taken

possession of the subject property forcibly. Immediately on 25.11.2009 itself the

father of the second respondent lodged complaint before the Inspector of Police,

District Crime Branch, Salem. However, the Inspector of Police refused to

receive the same. In fact, the complainant had taken all the photographs and

https://www.mhc.tn.gov.in/judis

CRL.O.P. No. 17800 of 2020

videographs of the occurrence. Therefore, there is absolutely no delay on the

part of the defacto complainant in lodging the complaint.

17. Thereafter, on the complaint lodged by the father of the second

respondent, the Superintendent of Police, forwarded it to the first respondent

and thereafter the present case has been registered as against the accused

persons. Therefore, the present complaint cannot be construed as two FIRs since

the first FIR was registered in the year 2009 for the occurrence which took place

in the year 2007 and the second FIR registered for the entire criminal activities

committed by the accused persons.

18. The learned counsel for the petitioners relied upon the judgment

reported in 2021 5 SCC 435 in the case of Kaptan Singh Vs. State of Uttar

Pradesh and Others, reads as follows;-

''9.The grave implications of allowing such

misuse may be understood better in light of the

following exposition by this Court in Amitbhai

Anilchandra Shah Vs. CBI:(SCCp.373, para 37)

''37. This Court has consistently laid down the

law on the issue interpreting the Code, that a second https://www.mhc.tn.gov.in/judis

CRL.O.P. No. 17800 of 2020

FIR in respect of an offence or defference offences

committed in the course of the same transaction is not

only impermissible but it violates Artcile 21 of the

Constitution. In T.T.Antony, this Court has

categorically held that registration of second FIR

(which is not a cross-case) is violative of Article 21 of

the constitution''.

In view of the facts and circumstances, the above case is not applicable to

the case on hand.

19. The learned counsel for the petitioners relied upon the judgment of

Hon'ble Supreme Court wherein it was held that if the petition under Section 482

of Cr.P.C was at the stage of FIR, in that case the allegations in the

FIR/complaint only are required to be considered and whether a cognizable

offence is disclosed or not is required to be considered. However, thereafter

when the statements are recorded, evidence is collected and the charge-sheet is

filed, after conclusion of the investigation/inquiry, if the matter stands on

different footing, the Court is required to consider the material/evidence

collected during the investigation. The Court is not required to go into the merits

of the allegations while exercising its power under Section 482 Cr.P.C https://www.mhc.tn.gov.in/judis

CRL.O.P. No. 17800 of 2020

20. In this regard, 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., as follows:-

" 12.So far as the second ground is concerned, we are of the view that the 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.

21. Recently, the Hon'ble Supreme Court of India dealing in respect of the https://www.mhc.tn.gov.in/judis

CRL.O.P. No. 17800 of 2020

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 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.”

22. Further the Hon'ble Supreme Court of India also held in the order

https://www.mhc.tn.gov.in/judis

CRL.O.P. No. 17800 of 2020

dated 02.12.2019 in Crl.A.No.1817 of 2019 in the case of M.Jayanthi Vs.

K.R.Meenakshi & anr, as follows:

"9. It is too late in the day to seek reference to any authority for the 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...................."

https://www.mhc.tn.gov.in/judis

CRL.O.P. No. 17800 of 2020

The above judgments are squarely applicable to this case and as such, the

points raised by the petitioners cannot be considered by this Court under Section

482 Cr.P.C.

23. In view of the above discussion and decision of the Hon'ble Supreme

Court, this Court is not inclined to quash the proceedings in S.C.No.171 of 2019

on the file of the Principal District and Sessions Court, Salem.

24. Accordingly, this criminal original petition is dismissed. Consequently,

connected miscellaneous petitions are also closed.

29.06.2022

Index : Yes / No Speaking / Non Speaking order ata