Madras High Court
M/S.The Standard Textiles vs A.Ayyasamy on 30 June, 2022
Crl.O.P.No.30556 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 30.06.2022
CORAM :
THE HON'BLE MRS. JUSTICET.V.THAMILSELVI
Crl.O.P.No.30556 of 2019
and Crl.M.P.No.16568 of 2019
1. M/s.The Standard Textiles
A Partnership Firm,
Rep. by its partner Kumar,
2. Mr.V.Kumar
S/o.Velusamy Chettiar,
Partner,
M/s.The Standard Textiles
...Petitioners
Vs.
A.Ayyasamy ... Respondent
PRAYER: Criminal Original Petition is filed under Section 482 of
Criminal Procedure Code to call for the records relating to the order
dated 05.01.2019 made in CRP.No.20 of 2018 on the file of the learned
Third Additional District and Sessions Court, Dharapuram reversal of
the order dated 17.04.2018 made in C.M.P.No.5950 of 2017 in
C.C.No.65 of 2019 on the file of the learned Judicial Magistrate,
Dharapuram and set aside the same by allowing this Criminal Original
Petition.
1
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.30556 of 2019
For Petitioner : Mr.N.Manokaran
For Respondent : Mr.R.Sivakumar
ORDER
This petition has been filed to set aside the order dated
05.01.2019 made in CRP.No.20 of 2018 on the file of the learned Third
Additional District and Sessions Court, Dharapuram reversal of the
order dated 17.04.2018 made in C.M.P.No.5950 of 2017 in C.C.No.65
of 2019 on the file of the learned Judicial Magistrate, Dharapuram.
2. Brief facts of the case are as follows
The respondent/complainant belongs to agriculture family and
does not posses sufficient education, an extent of 2.84 acres of land in
Re-Survey No.580, , Patta No.875 of Narajnapuram Village,
Dharapuram Taluk by virtue of registered Sale deed registered as
Document No.2225 of 1996 dated 28.02.1996 belongs to him by way of
purchase and he was in is possession and enjoyment of the property.
The first accused herein is the partnership firm in which, the second is
the partner, in order to run their business, the second accused
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Crl.O.P.No.30556 of 2019
approached the respondent/complainant in the year 2004, requested his
land under lease and the respondent/complainant also agreed to lease
out the said vacant land. Accordingly, they registered the lease deed in
the month of September on 02.09.2004 and the said lease deed was
registered at Registrar office, Dharapuram in the name of petitioners for
a period of 25 years to carryon wind mill operation in the subject matter
of property and the lease amount per year was fixed as Rs.200 from the
date of order agreed to pay by the accused. The said lease deed was
prepared by a Document Writer Sheikdawood, who was brought by the
accused persons from Karur and the same was typed b one
R.Gandhimathy at Sri Ganeesha Type office & Computers,
Dharapuram, and some persons of the accused has signed as witnesses.
3. Thereafter, the respondent had applied for encumbrance
certificate for his property during the year 2013 and to his shock he
found that the acused with the malafide intention to grab his property,
on the same date when the lease deed was registered a sale deed was
also stood registered as Document No.2641 of 2004 in the name of the
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Crl.O.P.No.30556 of 2019
accused. The accused had fraudulently prepared the above sale deed
along with the lease deed without the consent of the respondent and had
obtained his signature and registered the fraudulently prepared sale
deed in his name. Immediately, the respondent had preferred a
complaint to the Dharapuram Police during the month of May 2013
against the petitioners and the respondent was summoned by the police
for enquiry on 27.05.2013 and after enquiry, the complaint was
forwarded to the Tiruppur District Land Grabbing Cell for further
investigation. Thereafter, since the complaint was not enquired
properly and no action was taken, the complainant send petition to the
District Collector for a direction to the police for taking action. The
police authorities received the petition and no action has been taken by
the police and the complaint was kept abeyance. Hence, he approached
the learned Magistrate had preferred the complaint under Section 200
Cr.P.C.. praying to the learned Magistrate to take cognizance and issue
process to the accused and to punish them for the alleged offences
under Sections 120(b), 420, 468, 471 r/w 109 IPC & Land Grbbing
Offences or the complaint may forward to the jurisdiction police under
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Crl.O.P.No.30556 of 2019
Section 156(3) issue direction to the Investigating Agency and
investigate the matter and to file a final report. Thereafter, the statement
was recorded on 17.11.2017 and the complainant was examined as Pw1
on his side Pw2 to Pw5 were examined and Exs.P1 to P7 were marked..
Thereafter, on considering those documents, the learned Magistrate had
dismissed the application concludes that he produced only xerox copy
of the sale deed, which is not primary evidence, accordingly, the said
application was dismissed.
4. Aggrieved that the order, the respondent/complainant
preferred the Revision Petition in CRP.No.20 of 2018 before the third
Additional District and Sessions Judge, Tiruppur. The learned District
and Sessions Judge hearing the complaint and also perused the order of
the learned Magistrate concludes that the trial Court failed to consider
the ingredients required for the proceedings under Section 202 Cr.P.C.,
The learned Magistrate bound to see only whether there is any prima
facie case made out in the complaint to proceed further. But the learned
Magistrate observed that documents are Xerox and primary evidence
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Crl.O.P.No.30556 of 2019
not produced which is beyond this scope of the trial Judge, as per
provisions under Sections 202 of Cr.P.C. Accordingly, the learned
Sessions Judge had allowed the Revision Petition and the matter was
remitted back for fresh consideration to the trial Court in accordance
with law.
5. Aggrieved the said order, the petitioners/accused preferred this
petition.
6. The learned counsel appearing for the petitioners submitted
that the order passed by the Revision Court is against law and contrary
to the provisions of the Code of Criminal Procedure and prayed to set
aside the order of the learned Sessions Judge and the following
grounds.
(i) That the learned Sessions Judge has failed to given an
opportunity of hearing to the petitioners as per the mandate of Sec.
401(2) Cr.P.C., Hence, the order is liable to be set aside for not giving
an opportunity of hearing to the petitioners who were the respondents
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Crl.O.P.No.30556 of 2019
in CRP.No.20 of 2018.
(ii) The disputed sale deed dated 02.09.2004. But the complaint
was filed on 09.10.2017 i.e., nearly 13 years after the execution of the
sale deed and in order to avoid huge delay since the matter is under
civil nature. Hence, the complaint of civil profile has been given
criminal colour in order to over come bar of limitation. Without
considering those aspects, the learned Sessions Judge allowed the
revision, hence he prayed to set aside the order.
7. The learned counsel appearing for the petitioners/accused
submitted that while disposing the CRP.No.20 of 2018 , the learned
Sessions Judge ought to have given an opportunity of hearing to the
petitioners instead of that he allowed the application and remitted back
to the matter to the Magistrate is violation as per the mandate of
Section 401(2) Cr.P.C. He further submitted that nearly 13 years after
execution of the sale deed he filed the said application before the
Magistrate by invoking under Section 200 Cr.P.C., and the same was
dismissed by the learned Magistrate. He further submitted that the said
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Crl.O.P.No.30556 of 2019
deed dated 02.09.2004 has not been released in view of the pendency of
the proceedings under Sec 47 A of the Indian Stamp Act. Further
contend that respondent has executed the lease deed in Document
No.2640 of 2004 and also the sale deed in Document No.2641 of 2004
dated 02.09.2004 with full knowledge and consent. He further
submitted that the respondent has kept quiet for a period of 11 years
and he never raised his little finger against the registration of both the
document. Thus, the complaint is belated one with ulterior motive, he
gave complaint to grab money from the petitioner.
8. By way of reply, the learned counsel for the respondent
submitted that there is no necessity to sell the property on the same day
when the lease deed was executed. He further submitted that the
petitioners had forged the documents, defrauded and cheated the
respondent with a malice intention of grabbing the property belonging
to him, illegally created a Sale deed on 02.09.2004 and registered a
Doc No.2641 of 2004 without his consent and thereby caused damage
and encumbrance to him and his property. Moreover, the said
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Crl.O.P.No.30556 of 2019
documents also not released due to pendency of 47 A Proceedings.
Further, submitted that the lease deed was executed on 02.09.2004 but
he never gave the consent to execute the sale deed on that day itself. He
also further submitted that the respondent had produced all the copy of
the documents before the learned Magistrate but the same was not
appreciated and erroneously dismissed the petition under Section 200
Cr.P.C., but however, the learned Sessions Judge rightly appreciated all
those documents and passed the order.
9. On considering the submissions on either side and perusal of
the material available on record, the complainant filed a private
complaint under Section 200 Cr.P.C., before the Jurisdiction
Magistrate, Dharapuram against the accused to take cognizance to issue
fresh notice to the accused and punish them for the alleged land
grabbing offence or he prayed to issue direction to the police to
investigate the the matter and file a final report under Section 156(3)
Cr.P.C. The respondent also produced the Xerox copy of his sale deed
and the copy of the sale deed stands in the name of the accused 1 and 2
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Crl.O.P.No.30556 of 2019
dated 02.09.2004. However, the learned Magistrate erroneously
dismissed the complaint on the ground that the respondent had
produced the Xerox copy of the sale deed and there is no sufficient
ground for proceeding further as original documents were not
produced.
10. As discussed above, the respondent/complainant had
produced the materials document along with applications more
particularly copy of the lease deed and also sale deed which are
registered document also available for verification in the Registrar
Office, Dharapuram which are sufficient to take case on file. Indeed,
the learned Sessions Judge rightly appreciated these aspects and
allowed the revision petition except remitted the matter back to the
learned Magistrate for fresh consideration, hence other findings of the
learned Sessions Judge is hereby confirmed.
11. The authority relying upon a Judgment in (2012) 10
Supreme Court Cases 517 [Manharibhai Muljibhai Kakadia and
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Crl.O.P.No.30556 of 2019
another vs Shaileshbhai Mohanbhai Patel and others relied by the
accused not squarely applicable of the facts of this case for the reason
that only, it is a primary stage and the petitioner/accused need not be
called for enquiry before taking cognizance either before the Magistrate
or before the police.
12. Accordingly, this Criminal Original Petition is dismissed and
the learned Magistrate is directed to take fresh consideration of the
application as prayed by the respondent in accordance with law.
Consequently, connected miscellaneous petition is closed.
30.06.2022
msrm
Speaking Order/ Non Speaking Order
Index: Yes/ No
Internet: Yes/ No
To
1. The Third Additional District and Sessions Court
Dharapuram.
2. The Judicial Magistrate,
Dharapuram.
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.30556 of 2019
T.V.THAMILSELVI,J.
msrm
Crl.O.P.No.30556 of
and Crl.M.P.No.16568 of 2019
30.06.2022
https://www.mhc.tn.gov.in/judis
