Madras High Court
M.Murugan vs M.Senthil Vel on 13 September, 2022
CRL.O.P(MD)Nos.14980 of 2017 and 1765 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 13.09.2022
CORAM
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
CRL.O.P(MD)Nos.14980 of 2017 and 1765 of 2018
and
CRL.M.P(MD)Nos. 9974 and 9975 of 2017
CRL.O.P(MD)No.14980 of 2017:
1.M.Murugan
2.Latha
3.Harinarayanan .. Petitioners/Accused Nos.1 to 3
Vs.
M.Senthil Vel .. Respondent/Complainant
PRAYER:- Petition filed under Section 482 of Criminal Procedure
Code, to call for the records in C.C.No.154/2017 on the file of the
learned Judicial Magistrate No.II, Madurai and quash the same.
For Petitioners : Mr.S.Deenadhayalan
For Respondent : Mr.B.Jeyakumar
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CRL.O.P(MD)Nos.14980 of 2017 and 1765 of 2018
CRL.O.P(MD)No.1765 of 2018:
M.Murugan .. Petitioner/Accused No.1
Vs.
M.Senthil Vel .. Respondent/Complainant
PRAYER:- Petition filed under Section 482 of Criminal Procedure
Code, to call for the records in C.C.No.206/2017 on the file of the
learned Judicial Magistrate No.II, Madurai and quash the same as against
the petitioner.
For Petitioner : Mr.S.Deenadhayalan
For Respondent : Mr.B.Jeyakumar
COMMON ORDER
The issue involved in both these petitions arise between same
parties and they are connected to each other and hence, both the petitions
are taken up together, heard and disposed of through this common order.
2. The defacto complainant filed a private complaint against the
petitioners and two others on the allegation that the property measuring
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CRL.O.P(MD)Nos.14980 of 2017 and 1765 of 2018
2.42 acres, which is an agricultural land was inherited by the respondent
along with his mother on the demise of his father and that with the help
of A4, who is a real estate broker, the respondent was misled and was
made to execute a sale deed, dated 23.6.2008 for a total sale
consideration of Rs.22,13,600/- and only Rs.2,00,000/- was paid out of
the total sale consideration and Rs.20,00,000/- was retained on the
ground that the original deed of the property must be handed over to the
first petitioner. As agreed, the original deed was shown to the first
petitioner and inspite of the same, the accused persons went back on
their promise and refused to pay the balance amount and the respondent
was also abused and threatened. That apart, the respondent and his
brother were thrown away from the property. The police complaint given
in this regard was registered in Crime No.105/2014 and a closure report
was filed as ‘mistake of fact’. The protest petition was also dismissed
with a liberty to the respondent to file a private complaint. Accordingly,
private complaint was filed and it was taken cognizance against five
accused persons for various offences. Aggrieved by the same, the
petitioners have filed Crl.O.P.(MD)No.14980 of 2017.
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CRL.O.P(MD)Nos.14980 of 2017 and 1765 of 2018
3. The respondent filed yet another private complaint before the
Court below by narrating the very same facts and in this complaint, the
additional allegation that was made was that an old lorry, which was
stationed in the property, was stolen. The police complaint ended up with
a closure report and hence, private complaint was filed and the same was
taken cognizance. Aggrieved by the same, Crl.O.P.(MD)No.1765 of 2018
has been filed before this Court.
4. Heard Mr.S.Deenadhayalan, learned counsel for the petitioners
in both petitions and Mr.B.Jeyakumar, learned counsel for the respondent
in both petitions.
5. This Court has carefully considered the submissions made on
either side and the materials available on record.
6. In the present case, it is admitted that the sale deed was
executed in favour of the first petitioner through a registered sale deed
dated 23.06.2008. On carefully going through this document, it is seen
that the possession was handed over by the respondent and it reads as if
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CRL.O.P(MD)Nos.14980 of 2017 and 1765 of 2018
the entire sale consideration of Rs.22,13,600/- was received by the
respondent. According to the respondent, a sum of Rs.20,00,000/- was
retained for the production of the original title document and inspite of
furnishing the same, the balance amount was not paid.
7. There is already civil litigation instituted by both sides in
O.S.No.22 of 2014 and O.S.No.40 of 2015 and the same is pending
before the competent Civil Court. Till date, the sale deed executed in
favour of the first petitioner has not been put to challenge. That apart, the
revenue records also stand mutated in the name of the first petitioner and
that also remains intact till date.
8. The learned counsel for the respondent has relied upon a
document named as a promise deed wherein the first petitioner has
agreed to pay the balance amount of Rs.20,00,000/-. According to the
respondent, since the first petitioner did not keep up the promise, the
respondent has been cheated. It is as a consequence of the same, the
other allegations of abuse, attack and threat follows suit.
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CRL.O.P(MD)Nos.14980 of 2017 and 1765 of 2018
9. When a transaction has been reduced to writing, no evidence
shall be given to prove the transaction, except the document itself. This
rule is based on the principle that the best evidence of which the case in
its nature is susceptible, should always be presented. The same is clear
on a bare reading of Section 91 of the Evidence Act.
10. In addition to the above, Section 92 of the Act is
supplementary to Section 91 and this provision makes it very clear that
when the terms of a disposition of property have been reduced to the
form of a document, no evidence of any oral agreement or statement
shall be admitted as between the parties to any such document or their
representatives for the purpose of contradicting, varying, adding or
subtracting from the terms of the document. The said provision also
provides six exceptions.
11. The learned counsel for the respondent is relying upon a
promise deed and is attempting to question the terms of the registered
sale deed executed in favour of the first petitioner. This is an exercise
which can be done only before a competent Civil Court by seeking for
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CRL.O.P(MD)Nos.14980 of 2017 and 1765 of 2018
appropriate relief and the Criminal Court is not the appropriate forum for
the same. The Court below failed to take note of this vital fact.
12. If really the balance sale consideration has not been paid by
the first petitioner, giving a police complaint or filing a private complaint
is not the appropriate remedy. The matter has to be necessarily agitated
only before the Civil Court. That apart, the allegation that a vehicle kept
inside the property and which goes missing, sounds very unnatural since
the sale deed was executed in the year 2008 and the revenue documents
get mutated in the name of the first petitioner subsequently and the
complaint in this regard came to be filed in the year 2015 before the
police which was investigated and closed as mistake of fact.
13. It is very clear from the above that the respondent is
attempting to get a relief before a wrong forum instead of knocking the
doors of a Civil Court. Even the civil suit filed by the respondent seeks
for the relief of permanent injunction and the sale deed has not been put
to challenge and the respondent has not sought for the recovery of the
balance sale consideration. In short, a dispute which is purely civil in
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CRL.O.P(MD)Nos.14980 of 2017 and 1765 of 2018
nature is sought to be given a criminal colour.
14. There is yet another important ground which impels this Court
to interfere with the private complaints entertained by the Court below.
In the present case, initially, FIR was registered on both the complaints
given by the respondent and it ended in a closure report. The protest
petition filed by the respondent was also closed by giving liberty to
prosecute the private complaint. However, while taking cognizance of
the private complaint, the Court below did not take note of the closure
report filed by the police and has independently taken cognizance of the
private complaint based on the very same set of facts. This issue was
dealt with by this Court in Ganesan & Others v. Ganapathy reported in
2019 Supreme (Mad) 2662 and the relevant portion in the judgment is
extracted hereunder:
“10. In the present case, the respondent has
parallelly initiated a second complaint on the
same set of facts. The facts as projected in the
complaint has already been investigated by the
Police and a closure report has been filed. In spite
of notice being served on the respondent, he did
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CRL.O.P(MD)Nos.14980 of 2017 and 1765 of 2018
not file a protest petition and therefore, the
closure report was taken on file and the case was
closed. The respondent is now agitating the very
same issue in the second complaint. Atleast, the
notice of the Court below could have been drawn
by the respondent regarding the closure report
filed by the Police. At that point of time, the Court
below could have taken note of the said fact and
treated this complaint as a protest petition. Even
this was not done in the present case. The Court
below has completely discarded the closure report
filed by the Police and has independently taken
cognizance of the private complaint based on the
same set of facts. In the considered view of this
Court, the cognizance taken by the Court below is
unsustainable in law.”
15. In view of the above discussion, this Court has absolutely no
hesitation to interfere with the private complaint entertained by the Court
below and accordingly, the complaints pending in C.C.No.154 of 2017
and C.C.No.206 of 2017 are hereby quashed. It is made clear that the
quashing of the criminal proceedings will not stand in the way of the
respondent in prosecuting the claim before the competent Civil Court.
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CRL.O.P(MD)Nos.14980 of 2017 and 1765 of 2018
16. Both the Criminal Original Petitions are accordingly allowed
in the above terms. Consequently, connected miscellaneous petitions are
closed.
13.09.2022
Index : Yes / No
Internet : Yes / No
PJL
To
The Judicial Magistrate No.II,
Madurai.
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https://www.mhc.tn.gov.in/judis
CRL.O.P(MD)Nos.14980 of 2017 and 1765 of 2018
N.ANAND VENKATESH,J.
PJL
Crl.O.P(MD)Nos.14980 of 2017
and 1765 of 2018
13.09.2022
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https://www.mhc.tn.gov.in/judis
