Madras High Court

N.Muthukrishnan vs The State on 14 June, 2022

                                                                              Crl.OP.No.15494of 2020

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED: 14.06.2022

                                                      CORAM:

                             THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

                                             Crl.O.P.No.15494 of 2020
                                                       and
                                             Crl.MP.Nos.5903 of 2020


                     N.Muthukrishnan                                             ... Petitioner

                                                           Vs.

                     1. The State,
                        Rep.By Inspector of Police,
                        District Crime Branch,
                        Kanchipuram District.
                        Kanchipuram.

                     2. Raghuraj
                        Power of Attorney Holder of
                        K.Krishnamoorthy                                      ... Respondents

                     PRAYER: Criminal Original Petition is filed under Section 482 of the
                     Code of Criminal Procedure, to call for the records and quash the
                     proceedings in CC.No.1 of 2017 on the file of the learned Judicial
                     Magistrate No.2, Chengalpet as against the petitioner.




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https://www.mhc.tn.gov.in/judis
                                                                               Crl.OP.No.15494of 2020

                                        For Petitioner    : Mr.A.Kumar,
                                                            Senior Counsel
                                                            for M/s.Tatava Legal Chennai
                                        For Respondents : Mr.A.Gopinath
                                                          Government Advocate (Crl. Side)
                                                           for R1
                                                         : Mr.P.Yuvaraj for R2

                                                            ORDER

This Criminal Original Petition has been filed, invoking Section

482 Cr.P.C seeking orders to call for the records pertaining to C.C.No.1

of 2017 pending on the file of the Judicial Magistrate-II, Chengalpet

and quash the same.

2. The case of the prosecution is that one Kuppusamy Naidu, the

father of the second respondent was in possession and enjoyment of lands

measuring 0.62 acre in S.No.112/7, 1.07 acre in S.No.164/1 and 0.92

acre in S.No.163/3 at Appur Vllage, Chengalpattu Circle, Kanchipuram

District by way of sale deeds vide Doc.No.436/1947 and 789/1948

respectively registered before the Sub-Registrar,Chengalpattu. After his

demise, on 12.06.1958, his legal heirs viz., his son and daughter became

the successors of the said properties. The second respondent executed

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patta No.41 in his name and paid land and other taxes and continued to

be in the actual possession and enjoyment of those properties. On

28.12.2007, one Babu /A1 by impersonating as Krishnamurthy /second

respondent before the Sub-Registrar, T.Nagar, Chennai got the general

power of attorney registered vide Doc.No.1579/2007 in favour of the

petitioner(A2), A3, A4 and A5 signed as witnesses in the said general

power of attorney vouching that the said impersonator as the real

Krishnamurthy/second respondent. It is further alleged that the accused

in furtherance of the conspiracy, used the GPA as a genuine document for

execution of two sale deeds on 04.01.2008 in favour of two companies,

represented by a common representative who is ranked as A7. In the sale

deeds, there was confirming party, who had been ranked as

A6(confirming party) who had received all the sale consideration through

bank transfer from the buyer. The sale transaction before the II Joint

Registrar, Chengalpattu is as follows;

Date Doc.No. Survey Numbers In favour of Document dated 104 of 2008 0.91 acre of land in Avni Living Space

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Date Doc.No. Survey Numbers In favour of 04.01.2008 survey No.163/2 Pvt Ltd

1.09 acre of land in survey No.164/1 pertaining to the second respondent along with the lands of 8 other properties Registration dated 106 of 2008 0.62 Acre of land in Kshetra Build Tech 07.01.2008 Survey No.112/1 Pvt Ltd., pertaining to the second respondent along with the lands of two others

Thus, the petitioner is facing trial in CC.No.1/2017 on the file of the

learned Judicial Magistrate No.2, Chengalpet for the alleged offences

under Sections. 465, 468, 471, 420 r/w 120-B IPC.

3. Heard the learned counsel for the petitioner, the learned

Government Advocate (Crl.Side) for the first respondent police and the

learned counsel for the second respondent.

4. A perusal of available records reveals that totally, there are seven

accused involved in this case, in which, the petitioner is arrayed as A2.

According to the case of the prosecution, Babu/A1 impersonated and

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executed a power of attorney in favour of A2/ petitioner herein. For the

said power of attorney, other accused persons stand as witnesses. As

there are specific allegations against the petitioner and the main allegation

is misappropriation of funds,this court is not inclined to quash the entire

proceedings and the same is liable to be dismissed.

5. 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., wherein it has been held 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

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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.

6. Recently, the Hon'ble Supreme Court of India, while dealing

with the 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, 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.

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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.”

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

order 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

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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...................."

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

points raised by the petitioner cannot be considered by this Court under

Section 482 Cr.P.C.

8. In view of the above discussion, this Court is not inclined to

quash the proceedings in C.C.No.1 of 2017 on the file of the Judicial

Magistrate Court-II, Chengalpattu. The petitioner is at liberty to raise all

the grounds before the trial Court. However, the trial Court is directed to

complete the trial within a period of six months from the date of receipt

of copy of this Order.

9. Accordingly, this criminal original petition is dismissed.

Consequently, connected miscellaneous petition is closed.