Madras High Court

C.Radhakrishnan vs State: Rep. By on 23 September, 2022

                                                                               CRL.O.P.No.16814 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    Reserved on : 09.09.2022

                                               Date of Verdict : 23.09.2022

                                                           CORAM:

                             THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN

                                             CRL.O.P.No.16814 of 2022 and
                                               Crl.MP.No.10137 of 2022

                C.Radhakrishnan                                                 ... Petitioner/A1

                                                              Vs.

                1.State: Rep. by
                  The Inspector of Police,
                  Guduvanchery Police Station,
                  Chengalpet District
                  (Cr.No.186 of 2022)

                2.Puppy @ Prema                                                 ... Respondents


                PRAYER: Criminal Original Petition is filed under Section 482 of Cr.P.C.

                praying to call for the records relating to the impugned first information report

                in crime No.186 of 2022 on the file of the Guduvanchery Police Station,

                Chengalpattu District and quash the same as against the petitioner/A1.

                                   For Petitioner       : Mr.N.R.Elango,
                                                          Senior Counsel
                                                          for Mr.K.S.Arumugam


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                                                                               CRL.O.P.No.16814 of 2022

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

                                        For R2       : Mr.L.Dhamodaran


                                                         ORDER

This criminal original petition has been filed to quash the F.I.R. in

crime No.186 of 2022 registered by the first respondent / police for offences

under Sections 406, 418, 420, 294(b), 506(1) of IPC, as against the petitioner.

2. The case of the prosecution is that the agricultural lands

comprised in various survey numbers to an extent of 1.98 acres originally

belonged to one, Balakrishna Naicker vide patta No.648. He died on

25.05.1994 leaving behind his legal heirs including the second respondent

herein. The land comprised in various survey numbers to an extent of 49 cents

originally belonged to one, Natesan Naicker, Balakrishna Naicker,

Parthasarathy Naicker, Sundaresan Naicker, Ranganathan, Rama Naicker and

Elumalai Naicker vide patta No.1337. All of them have got 1/7 share each and

on the death of the said Balakrishna Naicker, his legal heirs have inherited

7/28 shares in the said property. Both the properties are the subject matter of

dispute in this case. While being so, all the legal heirs of the said Balakrishna

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CRL.O.P.No.16814 of 2022

Naicker executed a deed of general power of attorney dated 25.07.2016

registered vide document No.7728 of 2016 and appointed the first accused to

deal with the property. Other co-owners of the immovable property also

executed three deeds of General Power of Attorney in favour of the first

accused. On the strength of the same, the first accused executed two sale deeds

in favour of M/s.Krishna Estate represented by its partner i.e. second accused.

At the time of execution of power of attorney, the legal heirs were paid

Rs.15,00,000/- and cheque for a sum of Rs.35,00,000/- as security till the

formation of layout. They were also instructed not to present the cheque till the

development of the said property. Therefore, the defacto complainant and

others waited for months and there is no positive response. Thereafter, they

came to understand that the first accused executed sale deed and received huge

sale consideration to the tune of Rs.10,24,00,000/- in respect of the subject

property. When it was questioned by the defacto complainant, they were

threatened with dire consequences by goondas and henchmen.

3. Mr.N.R.Elango, Senior Counsel appearing for the petitioner

submitted that the entire sale consideration was duly paid to the second

respondent. However, the second respondent and other legal heirs caused

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CRL.O.P.No.16814 of 2022

notice to the accused persons alleging that the deed of power of attorney was

executed only for the development of the subject property into layout and as

such sale deed executed in favour of A2 is not valid and thereby called upon

the first accused to cancel the sale deed. On receipt of the same, the petitioner

had sent reply notice dated 03.07.2019. While being so, the second respondent

also lodged complaint on 17.06.2019 and for non registering the same, the

second respondent approached this Court in Crl.OP.No.26522 of 2019 for

registration of FIR. It was disposed of directing the second respondent to work

out his remedy in accordance with the judgment of the Hon'ble Division Bench

of this Court. Thereafter, the first respondent conducted detailed enquiry and

directed both the persons to approach competent civil court to redress their

grievance and closed the complaint by the closure report on 30.12.2019. While

being so, the second respondent suppressed the above facts and filed complaint

for seeking direction under Section 156(3) of Cr.P.C. before the learned

Judicial Magistrate Court-II, Chengalpet in CMP.No.1189 of 2021. In pursuant

to the said direction, the first respondent registered the present impugned FIR.

3.1 He further submitted that with a view to convert the civil dispute

into a criminal dispute, the second respondent sought for direction under

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CRL.O.P.No.16814 of 2022

Section 156(3) of Cr.P.C. suppressing the earlier complaint and closure report.

If at all any grievance in respect of non payment of sale consideration and

other issue, the second respondent ought to have filed a suit challenging the

sale deeds. So far, the second respondent did not file any suit to challenge the

sale deeds.

4. Heard, Mr.N.R.Elango, Senior Counsel appearing for the

petitioner, Mr.E.Raj Thilak, Additional Public Prosecutor appearing for the

first respondent and Mr.L.Dhamodaran, the learned counsel for the second

respondent.

5. On perusal of the counter filed by the second respondent, she was

not paid any sale consideration so far. He obtained power of attorney for

getting approval of layout. Only after getting approval, the property will be

sold and sale consideration will be paid to her. Whereas, the petitioner, after

obtaining the power of attorney, immediately transferred the same in favour of

the second accused. That apart, the second respondent never agreed to

approach the civil court for appropriate relief. The first respondent without

even conducting any enquiry, closed the complaint by the closure report dated

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CRL.O.P.No.16814 of 2022

30.12.2019. Therefore, the second respondent was constrained to approach the

court below for direction under Section 156(3) of Cr.P.C. Even after the

direction, the first respondent failed to file any FIR and again, the second

respondent was constrained to file petition for direction under Section 482 of

Cr.P.C. in Crl.OP.No.25478 of 2021. While pending the said direction petition,

the first respondent registered the FIR and it is under investigation.

6. On perusal of the closure report, revealed that the second

respondent refused to give written consent to approach the civil court. Even

then, the first respondent directed the parties to approach the civil court for

appropriate relief. Therefore, the second respondent rightly approached the

court below for direction under Section 156(3) of Cr.P.C. since the first

respondent failed to register any FIR and directed to approach the civil court.

On perusal of the order passed by the learned Judicial Magistrate No.II,

Chengalpattu in CMP.No.1189 of 2021 also revealed that the object of the

power of attorney was for approval and to form layout. However, the petitioner

immediately after execution of deed of power of attorney, he executed sale

deed in favour of the second accused by the registered sale deed dated

01.08.2016. Thereafter, the second accused executed various sale deeds to

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CRL.O.P.No.16814 of 2022

various persons and made huge profit out of it. The main allegation is that the

second respondent was not paid any sale consideration. Utilising her illiteracy

and deceived her to execute power of attorney in favour of the petitioner. On

perusal of the deed of power of attorney dated 25.07.2016, revealed that no

consideration is received for executing the power of attorney. All the clauses

also revealed that the said power of attorney executed to develop the property

by forming layout. That apart, the second respondent did not suppress anything

before the court below by seeking direction under Section 156(3) of Cr.P.C.

7. It is seen from the First Information Report that there are specific

allegations as against the petitioner to attract the offence, which has to be

investigated in depth. Further the FIR is not an encyclopedia and it need not

contain all facts and it cannot be quashed in the threshold. This Court finds

that the FIR discloses prima facie commission of cognizable offence and as

such this Court cannot interfere with the investigation. The investigating

machinery has to step in to investigate, grab and unearth the crime in

accordance with the procedures prescribed in the Code.

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CRL.O.P.No.16814 of 2022

8. It is relevant to rely upon the judgment of the Hon'ble Supreme

Court of India passed in Crl.A.No.255 of 2019 dated 12.02.2019 in the case of

Sau. Kamal Shivaji Pokarnekar vs. the State of Maharashtra & ors., as

follows:-

"4. The only point that arises for our consideration in this case is whether the High Court was right in setting aside the order by which process was issued. It is settled law that the Magistrate, at the stage of taking cognizance and summoning, is required to apply his judicial mind only with a view to taking cognizance of the offence, or in other words, to find out whether a prima facie case has been made out for summoning the accused persons. The learned Magistrate is not required to evaluate the merits of the material or evidence in support of the complaint, because the Magistrate must not undertake the exercise to find out whether the materials would lead to a conviction or not.

5. Quashing the criminal proceedings is called for only in a case where the complaint does not disclose any offence, or is frivolous, vexatious, or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same.

It is not necessary that a meticulous analysis of the case should be done before the Trial to find out whether the case

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CRL.O.P.No.16814 of 2022

would end in conviction or acquittal. If it appears on a reading of the complaint and consideration of the allegations therein, in the light of the statement made on oath that the ingredients of the offence are disclosed, there would be no justification for the High Court to interfere. ......................

9. Having heard the learned Senior Counsel and examined the material on record, we are of the considered view that the High Court ought not to have set aside the order passed by the Trial Court issuing summons to the Respondents. A perusal of the complaint discloses that prima facie, offences that are alleged against the Respondents. The correctness or otherwise of the said allegations has to be decided only in the Trial. At the initial stage of issuance of process it is not open to the Courts to stifle the proceedings by entering into the merits of the contentions made on behalf of the accused. Criminal complaints cannot be quashed only on the ground that the allegations made therein appear to be of a civil nature. If the ingredients of the offence alleged against the accused are prima facie made out in the complaint, the criminal proceeding shall not be interdicted."

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

quash the First Information Report. Accordingly, this Criminal Original

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CRL.O.P.No.16814 of 2022

Petition stands dismissed. However, the first respondent / police is directed to

complete the investigation in Crime No.186 of 2022 and file a final report

within a period of twelve weeks from the date of receipt of copy of this Order,

before the jurisdiction Magistrate, if not already filed. Consequently,

connected miscellaneous petition is closed.

23.09.2022 Internet : Yes / No Index : Yes / No Speaking / Non Speaking order

lok

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