Madras High Court

R.Gomathi vs The State Represented By Its on 8 September, 2022

                                                                           Crl.O.P.No.17209 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 08.09.2022

                                                       CORAM:

                             THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

                                             Crl.O.P.No.17209 of 2022
                                           and Crl.M.P.No.10410 of 2022

                     R.Gomathi                                                ...Petitioner

                                                          Vs.
                     1.The State represented by its,
                       The Inspector of Police,
                       E2 Peelamedu Police Station,
                       Coimbatore.

                     2.J.Sathishkumar                                         ... Respondents

                     PRAYER : Criminal Original Petition filed under Section 482 of Cr.P.C.,
                     to call for the entire records to the Crime No.632 of 2022 on the file of
                     the first respondent police and quash the same.


                                         For Petitioner     : Mr.E.K.Kumaresan

                                         For Respondents
                                               For R1    : Mr.E.Raj Thilak
                                                           Additional Public Prosecutor

                                               For R2       : Mr.V.Jayachandran




                     Page 1 of 14
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                                                                                  Crl.O.P.No.17209 of 2022

                                                           ORDER

This Criminal Original Petition has been filed to quash the

F.I.R in Crime No.632 of 2022 registered on the file of the first

respondent police, for the offences punishable under Section 420 of IPC

and Section 4 of Tamil Nadu Prohibition of Charging Exorbitant Interest

Act, 2003, as against the petitioner.

2. The case of the prosecution is that in order to settle the loan

availed from the Central Bank of India, Kalapatti branch, the defacto

complainant borrowed amount from the accused persons and for the

name sake he executed sale deed in favour of the second and third

accused separately and jointly by way of three sale deeds in respect of the

subject properties on condition that after repayment of loan amount with

interest, they have to reconvey the properties in his favour.

3. It is further alleged that when the defacto complainant

approached the accused persons for repayment of amount along with

interest, they demanded exorbitant interest and refused to reconvey the

property. Therefore he lodged complaint and on receipt of the same, the

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first respondent registered the FIR under Crime No.632 of 2022 for the

offences punishable under Section 420 of IPC and Section 4 of Tamil

Nadu Prohibition of Charging Exorbitant Interest Act, 2003.

4. Heard Mr.E.K.Kumaresan, learned counsel appearing for the

petitioner, Mr.E.Raj Thilak, leaned Additional Public Prosecutor

appearing for the first respondent police and Mr.V.Jayachandran, learned

counsel appearing for the second respondent.

5. It is seen from the records that originally the properties

comprised in S.F.No.45/4B to an extent of 61¾ cents, S.F.Nos.46/2A1

and 46/1B1 to an extent of 81 cents and S.F.Nos.46/2A1 and 46/1B1 to

an extent of 82 cents were belonged to the second respondent/defacto

complainant's grandfather viz., Chinna Gounder through a partition deed

registered vide document No.1911 of 1960 dated 17.08.1960. Thereafter,

his grand father entered into a deed of partition with the father of the

second respondent on 19.12.1990 registered vide document No.4016 of

1990. After demise of his grandfather, his legal heirs partitioned the

properties by the registered partitioned deed dated 19.07.2001 vide

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document No.2165 of 2001. The second respondent's father was alloted

the subject properties situated in Irugur Village and three female heirs of

his grand father have been apportioned cash towards their share. In

pursuant to the same, they also executed release deeds in favour of the

second respondent's father.

6. Thereafter the petitioner and the second accused purchased

the properties from the second respondent's father by way of three sale

deeds as follows :-

Sale deed Sl. document Sale Property Vendor Purchaser No No. and consideration details.

date 1 2053/2019 Defacto Petitioner/ Rs.25,22,800 S.F.Nos.

                             dt    complainant,     A3                                46/2A1 and
                         25.02.2019 his father                                        46/1B1 to an
                                    and sister                                        extent of 81
                       2 2054/2019   Defacto    Accused              Rs.25,53,950 S.F.Nos.46/2A
                             dt    complainant,  No.2                              1 and 46/1B1
                         25.02.2019 his father                                    to an extent of
                                    and sister                                       82 cents
                       3 2055/2019     Defacto     Jointly by Rs.19,23,250 S.F.No.45/4B
                             dt      complainant,     the                      to an extent of
                         25.02.2019 his father petitioner/                       61 ¾ cents
                                      and sister    A3 and
                                                    accused
                                                     No.2

7. At the time of purchase of the said properties, entire family

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members of the second respondent represented that there was no

encumbrance lis pendence or any charge whatsoever over the properties.

Believing their words, the petitioner and the second accused purchased

the property for valid sale consideration. Thereafter they came to under

stand that the legal heirs of the second respondent's grand father viz.,

Chinna Gounder have filed suit for partition in O.S.No.340 of 2018 on

the file of the learned Principal Subordinate Judge, Coimbatore as against

the second respondent and his father and sister, by challenging the

registered partition deed dated 19.07.2001 vide document No.2165 of

2001 and also the release deed dated 23.01.2002 vide document No.154

of 2002 and another release deed dated 31.03.2004 registered vide

document No.2583 of 2004.

8. Further while pending the suit, on the request made by the

petitioner and other accused, the legal heirs of the said Chinna Gounder

agreed to amicably settle the issue. Accordingly, they entered in to

compromise and they agreed to withdraw the suit upon payment of

Rs.18,00,000/- to the legal heirs of the said Chinna Gounder as full and

final settlement. The purchasers viz., the petitioner and the second

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accused have agreed to pay the said amount in order to conclude the

issue once and for all. Accordingly, the petitioner and the second accused

were impleaded as defendants Nos.6 & 7 in the said suit and by way of

compromise joint memo dated 22.07.2020, the suit has been disposed of.

In fact, in the said suit the second respondent also entered into the

witness box and recorded the compromise in O.S.No.340 of 2018.

Further in the said suit, the legal heirs of the Chinna Gounder have

undertaken that they will not claim any right or possession and

enjoyment which conveyed in favour of the petitioner and second

accused by the registered sale deeds.

9. While being so, again the minor daughter of the second

respondent herein filed another suit in O.S.No.1024 of 2021 on the file of

the learned Principal Subordinate Judge, Coimbatore, representing

through her mother and natural guardian, praying for partition of the

subject properties. The second respondent with malafide intention and to

illegally defeat the lawful right of the petitioner and second accused over

the properties, the said suit was filed in the name of her minor child.

Therefore, the purchasers viz., the accused 2 & 3 filed petition for

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rejection of plaint in O.S.No.1024 of 2021 and the same is pending.

10. That apart, another one Sampath has also filed suit in

O.S.No.29 of 2022 for permanent injunction, alleging that on

10.06.2017, he entered into an lease agreement with the father of the

second respondent in respect of the very same properties. It was also

filed on the instruction of the second respondent herein to defeat the

lawful right of the petitioner and the second accused. Finally, the second

respondent came with the present impugned complaint which is

registered in Crime No.632 of 2022 as one of the attempts of the second

respondent to prevent the purchasers viz., the petitioner and second

accused from enjoying the properties. In the present complaint, the

second respondent alleged that the sale deed was executed only for

security purpose and for reconveyance of the subject properties, the

accused persons demanded exorbitant interest.

11. On perusal of the sale deeds dated 25.02.2019, there is

absolutely no clause of conditional sale to the effect that on payment of

entire sale consideration with interest, the properties should be

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reconveyed by the purchasers. When it being so, the entire FIR is nothing

but clear abuse of process of law and no offence is made out as against

the petitioner. It is relevant to extract the provisions under Section 420

of the Indian Penal Code as follows :-

420. Cheating and dishonestly inducing delivery of property — Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

The ingredients to constitute an offence under Section 420 of IPC are as

follows :-

(i) A person must commit the offence of cheating under Section 415 and

(ii) The person cheated must be dishonestly induced to (a) deliver property to any person or (b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security.

Cheating is an essential ingredient for an act to constitute an offence

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under Section 420.

12. It is relevant to rely upon the judgment made by the

Honourable Supreme Court of India in the case of M/s. Indian Oil

Corporation Vs. NEPC India Limited and others reported in (2006) 6

SCC 736, held that the civil liability cannot be converted into criminal

liability and it is necessary to take notice of a growing tendency in

business circle to convert purely civil dispute in criminal case. This is

obviously on account of prevalent impression that civil law remedies are

time consuming and do not adequately protect the interest of

lender/creditors. Such a tendency is seen in several family disputes also,

leading to irretrievable breakdown of marriages/families. There is also an

impression that if a person could somehow be entangled in a criminal

prosecution, there is a likelihood of imminent settlement. Any effort to

settle civil disputes and claim which do not involve any criminal offence

by applying pressure through criminal prosecution should be deprecated

and dishonoured.

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13. In the case of G.Sagar Suri Vs. State of Uttar Pradesh

reported in 2000 (2) SCC 636, the Honourable Supreme Court of India

held as follows:-

“It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence, criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal Court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”

14. Further it is relevant to rely upon the land mark Judgment of

the Hon'ble Supreme Court of India in the case of State of Haryana and

others Vs. Bhajanlal and others reported in 1992 Supp (1) SCC 335, in

which, the Hon'ble Supreme Court of India has laid down the following

categories of instances wherein inherent powers can be exercised in order

to secure the ends of justice as follows:-

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“(a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;

(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;

(c) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;

(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;

(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;

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(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;

(g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

15. It has to see that, whether a matter which is essentially of a

civil nature has been given a cloak of a criminal offence. Where the

ingredients required to constitute a criminal offence are not made out

from a bare reading of the complaint, the continuation of the criminal

proceeding will constitute an abuse of the process of the Court. In the

present case, the averments in the complaint, read on its face, do not

disclose the ingredients necessary to constitute offences under the Penal

Code. An attempt has been made by the second respondent to cloak a

civil dispute with a criminal nature despite the absence of the ingredients

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necessary to constitute a criminal offence. The complaint filed by the

second respondent against the petitioner constitutes an abuse of process