Madras High Court

Rafi Ahamed vs V.Palanivelu on 30 June, 2022

                                                                         Crl.O.P.No.14303 of 2020

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 30.06.2022

                                                       CORAM:

                            THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

                                               Crl.O.P.No.14303 of 2020
                                              and Crl.M.P.No.5457 of 2020

                     Rafi Ahamed                                                 ...Petitioner
                                                         -Vs-

                     1. V.Palanivelu
                     2. M.Karthikeyan
                     3. Abdul Razack                                          ... Respondents

                     Prayer: Criminal Original petition filed under Section 482 of Code of
                     Criminal Procedure, to call for the records and quash the order dated
                     02.04.2019 in Cr.M.P.No.3165 of 2018 in C.C.No.148 of 2019 on the
                     file of the learned Judicial Magistrate No.I, Mayiladuthurai.
                                     For Petitioner    : Mr.N.A.Nassir Hussain

                                      For Respondents
                                           For R1     : Mr.K.Subburam
                                       For R2 & R3 : No appearance

                                                       ORDER

This petition has been filed to quash the order dated

02.04.2019 passed in Cr.M.P.No.3165 of 2018 in C.C.No.148 of 2019 on

the file of the learned Judicial Magistrate No.I, Mayiladuthurai, thereby

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

Crl.O.P.No.14303 of 2020

taken cognizance of the complaint lodged by the first respondent under

Section 200 of Cr.P.C., in C.C.No.148 of 2019 on his file.

2. The first respondent lodged complaint alleging that the

accused persons had registered a Society in the name of Nachimuthu

Nagar Kudiyirupoor Nala Sangam before the District Registrar,

Mayiladuthurai vide registration No.114/2013 on 21.10.2013. They also

filed a suit as against the first respondent on the file of the Principal

District Munsif Court to grab his property and succeeded in their attempt

thereby causing mental agony and financial loss. Further alleged that the

association is a fake association and created by false and fabricated

documents and 27 members were enrolled in the society without their

consent and one such member had given complaint that false office

address had been given while registering the society.

3. On the said complaint, the learned Magistrate examined

P.W.1 & P.W.2 and P.W.3 in part and has taken cognizance for the

offences under Sections 463, 409, 177, 191 of IPC and Sections 47, 48 of

Tamil Nadu Societies Registration Act r/w Section 192 of IPC and issued

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

Crl.O.P.No.14303 of 2020

summon to the petitioner. Aggrieved by the same, the petitioner filed this

present petition with the above said prayer.

4. The learned counsel appearing for the petitioner would

submit that one of the member of the Society viz., Treasurer was

examined as P.W.3 and on the document produced by P.W.3, the learned

Magistrate had taken cognizance. It is a violation of his constitutional

right enshrined under Article 20(3) of the Constitution of India. He

further submitted that in respect of the subject property, which is alleged

to have been forged and fabricated by the petitioner's association,

declared in favour of the petitioner's association and the same is

confirmed by this Court in S.A.No.794 of 2019 by the judgment dated

24.01.2022.

4.1. He further submitted that to take cognizance for the offence

under Sections 47 & 48 of the Tamil Nadu Societies Registration Act,

the first respondent ought to have obtained sanction to prosecute the

petitioner herein. Without obtaining any sanction, the present complaint

has been foisted as against the petitioner and the learned Magistrate

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

Crl.O.P.No.14303 of 2020

without considering the facts and circumstances, mechanically had taken

cognizance and issued summon. Therefore, he prayed to quash the entire

proceedings.

5. Per contra, the learned counsel appearing for the first

respondent/complainant submitted that the only ground raised by the

petitioner is that one of the member viz., Treasurer of Association called

Nachimuthu Nagar Kudiyirupoor Nala Sangam, was examined as one of

the witnesses and on the document produced by him, the learned

Magistrate had taken cognizance and it is violation of Article 20(3) of

the Constitution of India. He also drawn the attention of this Court to the

order passed by the learned Magistrate that P.W.3 was partly examined

and his proof affidavit was not taken considered as alleged by the

petitioner herein.

5.1. That apart, the petitioner produced false document while

registration of the association and also without consent of the members,

he himself added the persons who are not interested to join as member in

the association. Therefore, he produced false document as if the members

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

Crl.O.P.No.14303 of 2020

paid the subscription fee. Therefore, there are specific averments to

attract the offence as such, the learned Magistrate has taken cognizance

to prosecute the petitioner herein. He further submitted that all the

grounds raised by the petitioner cannot be considered herein under

Section 482 of Cr.P.C., since all are mixed question of facts and it can be

considered only during trial before the Trial Court. Hence, he prayed for

dismissal of this petition.

6. Heard Mr.N.A.Nassir Hussain, learned counsel appearing

for the petitioner and Mr.K.Subburam, learned counsel appearing for the

first respondent.

7. There are totally three accused in which, the petitioner is

arrayed as A2. The first respondent lodged complaint and the same has

been taken cognizance by the learned Magistrate by the impugned order

dated 02.04.2019 in Cr.M.P.No.3165 of 2018, for the offences under

Sections 463, 409, 177, 191 of IPC and Sections 47, 48 of Tamil Nadu

Societies Registration Act r/w Section 192 of IPC and issued summon to

the petitioner. Aggrieved by the same, the petitioner filed the present

petition before this Court.

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

Crl.O.P.No.14303 of 2020

8. The crux of the allegation made in the complaint is that the

petitioner and the second respondent had registered a society by name

Nachimuthu Nagar Kudiyirupoor Nala Sangam bearing Reg. No.114/13

on 21.10.2013 and filed a suit against the first respondent on the file of

the Principal District Munsif Court to grab his property and succeeded in

their attempt thereby causing mental agony and financial loss. It is

further alleged that the association is a fake association created by false

and fabricated documents and that 27 members were enrolled in the

society without their consent and one such member had given complaint

that false office address had been given by the petitioner. All the

allegations are bald and vague and there is no prima facie case to

constitute any of the offence as alleged by the first respondent.

9. The petitioner is the Secretary of Nachimuthu Nagar

Kudiyirupoor Nala Sangam, Mayiladuthurai. The said association filed

suit for permanent injunction, restraining the first respondent herein and

others from encroaching or making any construction in the suit common

property. The said suit was decreed in O.S.No.265 of 2013 on the file of

the Principal District Munsif Court, Mayiladuthurai. Aggrieved by the

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

Crl.O.P.No.14303 of 2020

same, the first respondent and others preferred an Appeal Suit in

A.S.No.71 of 2017 on the file of the Principal Sub Court, Mayiladuthurai

and the same was allowed by reversing the judgment passed by the trial

Court. Aggrieved by the same the petitioner's association filed a Second

Appeal before this Court in S.A.No.794 of 2019 and same was allowed

by confirming the judgment and decree passed by the trial Court, thereby

restrained the first respondent and other from encroaching or making any

construction in the suit property.

10. Originally, the property owned by one Nachimuthu

Mudaliar and he formed a layout. It was duly approved by the Deputy

Director of Town Planning, Trichy and also Mayiladuthurai

Municipality. As per the approval, the subject property ad measuring

11,200 sq.ft., was demarcated for public purpose. Thereafter, as per the

approved layout so many persons purchased their respective plots and

constructed houses. After demise of the said Nachimuthu Mudaliar, his

legal heirs sold out the portion of the land, which was demarcated for

public purpose, in favour of the first respondent herein.

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

Crl.O.P.No.14303 of 2020

11. The first respondent had taken a stand that though the

subject property was alloted for public purpose, it was not utilized for

that purpose, for which it was alloted, within three years as such, the

person who formed the layout, got every right to sell away the property.

Admittedly, it is approved layout and all the persons who purchased their

respective plots, had constructed their houses. Thereafter, on the partition

deed executed among the family members of the said Nachimuthu

Mudaliar, the subject property was sold out in favour of the first

respondent.

12. However, the subject property cannot be subjected for

partition and the trial Court rightly held that the sale deed which was

produced by the first respondent cannot be considered as legal document.

Therefore, the first respondent cannot take a stand that the association

formed by the petitioner only with an intention to grab the first

respondent's property. Therefore, there is absolutely no question of

fabrication of document or forging of signature committed by the

petitioner or other accused persons.

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

Crl.O.P.No.14303 of 2020

13. Insofar as the other offences under Sections 47 & 48 of the

Tamil Nadu Societies Registration Act are concerned, as rightly pointed

out by the learned counsel appearing for the petitioner, the first

respondent ought to have obtained prior sanction as contemplated under

Section 52 (2) of Tamil Nadu Societies Registration Act. It is relevant to

extract the said Section as follows:-

“ 52 Powers of Inspector General of Registration:-

(2) No prosecution shall be instituted under this Act without the previous sanction in writing of the Inspector General of Registration.” Accordingly, without previous sanction in writing of the Inspector

General of Registration, not below the rank of Deputy General of

Registration, no prosecution shall be instituted under the Tamil Nadu

Societies Registration Act.

14. Admittedly, the first respondent failed to get any prior

sanction to prosecute the petitioner's association and others for the

offences under Section 47 & 48 of the Tamil Nadu Societies Registration

Act. Therefore, the entire complaint is nothing but clear abuse of process

of law, since no offence is made out as against any of the accused in the

present complaint. If at all any grievances over the formation of the https://www.mhc.tn.gov.in/judis

Crl.O.P.No.14303 of 2020

association and other issues, the first respondent can very well institute a

suit before the civil Court.