Madras High Court
Mr.Arun Mammen vs Mr.Kamal Gupta … on 13 April, 2023
Crl OP Nos.6014, 6154 & 6262 / 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 05.04.2023 & 10.04.2023
PRONOUNCED ON : 13.04.2023
CORAM :
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
Criminal Original Petition Nos. 6014, 6154 & 6262 of 2021
and
Crl.M.P. Nos. 3940, 3939, 4059, 4060, 4134 & 4135 of 2021
Crl.O.P. No.6014 of 2021
1.Mr.Arun Mammen,
Managing Director,
MRF Limited,
No.11, Boat Club Road,
3rd Avenue,
R.A.Puram, Chennai – 600028.
2.Mr.Ranjit Jesudasen,
Director,
MRF Limited,
No.8, Valli Ammai Achi Street,
Kotturpuram,
Chennai – 600085.
3.Mr.KandathilMammenMammen
Managing Director,
MRF Limited,
“Deerhurst”, No.17, Boat Club Road
3rd Avenue, R.A.Puram
Chennai – 600028.
4.Ms.Ambika Mammen
Director,
MRF Limited,
“Deerhurst”, No.17, Boat Club Road
https://www.mhc.tn.gov.in/judis
1/20
Crl OP Nos.6014, 6154 & 6262 / 2021
3rd Avenue, R.A.Puram
Chennai – 600028.
5.Mrs.CibiMammen
Director,
MRF Limited,
No.11, Boat Club Road
3rd Avenue, R.A.Puram
Chennai – 600028.
6.Mr.Jacob Kurian
Director,
MRF Limited
New No.21, Old No.11
2nd Avenue, Harrington Road,
Chetpet, Chennai – 600031.
7.Mr.Rahul MammenMappillai,
Managing Director,
MRF Limited,
No.12, Boat Club Road
3rd Avenue, R.A.Puram,
Chennai – 600028.
8.Ms.Vimla Abraham,
Director,
MRF Limited,
Padinjarekara
Mount Wardha, Muttambalam,
P.O.Kottayam – 686 004.
9.Mr.Samir MappillaiTharain
Director
MRF Limited
“Deerhurst”, No.17, Boat Club Road
3rd Avenue, R.A.Puram
Chennai – 600028.
https://www.mhc.tn.gov.in/judis
2/20
Crl OP Nos.6014, 6154 & 6262 / 2021
10.Mr.Varun Mammen,
Director,
MRF Limited,
Old No.3A, New No.6,
River Side Road,
Kottupuram,
Chennai – 600085. ... Petitioners
Versus
Mr.Kamal Gupta … Respondent
PRAYER : Criminal Original Petition filed under Section 482 of the
Criminal Procedure Code seeking to call for the records on the file of the
IX Metropolitan Magistrate Court, Saidapet in C.C. No. 936 of 2021 and
quash the same.
For Petitioners : Mr. V. Karthik, Senior Counsel for
Mr. N.Damodaran.
For Respondent : Mr. Abdul Saleem, Senior Counsel for
M/s.AAV Partners.
Crl.O.P. No.6154 of 2021
M/s.MRF Limited
Represented by its General Manager Marketing Operations
Mr.Biju George, age 55
No.124, Creams Road,
Chennai – 600 006. … Petitioner
Versus
Mr.Kamal Gupta ... Respondent
https://www.mhc.tn.gov.in/judis
Crl OP Nos.6014, 6154 & 6262 / 2021
PRAYER : Criminal Original Petition filed under Section 482 of the
Criminal Procedure Code seeking to call for the records on the file of the
IX Metropolitan Magistrate Court, Saidapet in C.C. No. 936 of 2021 and
quash the same.
For Petitioner : Mr. B. Kumar, Senior Counsel for
Mr. M. Vijayan for M/s.King & Partridge.
For Respondent : Mr. Abdul Saleem, Senior Counsel for
M/s.AAV Partners.
Crl.O.P. No.6262 of 2021
Mr.Sheik Mohammed Nizar … Petitioner
Versus
1.Mr.Kamal Gupta
2.M/s.MRF Limited
Represented by its Managing Director,
Mr.Arun Mammen,
124, Creams Road,
Chennai – 600 006.
3.Mr.Arun Mammen,
Managing Director,
MRF Limited,
No.11, Boat Club Road,
3rd Avenue,
R.A.Puram, Chennai – 600028.
4.Mr.Ranjit Jesudasen,
Director,
MRF Limited,
No.8, Valli Ammai Achi Street,
Kotturpuram,
https://www.mhc.tn.gov.in/judis
Crl OP Nos.6014, 6154 & 6262 / 2021
Chennai – 600085.
5.Mr.KandathilMammenMammen
Managing Director,
MRF Limited,
“Deerhurst”, No.17, Boat Club Road
3rd Avenue, R.A.Puram
Chennai – 600028.
6.Ms.Ambika Mammen
Director,
MRF Limited,
“Deerhurst”, No.17, Boat Club Road
3rd Avenue, R.A.Puram
Chennai – 600028.
7.Mrs.CibiMammen
Director,
MRF Limited,
No.11, Boat Club Road
3rd Avenue, R.A.Puram
Chennai – 600028.
8.Mr.Jacob Kurian
Director,
MRF Limited
New No.21, Old No.11
2nd Avenue, Harrington Road,
Chetpet, Chennai – 600031.
9.Mr.Rahul MammenMappillai,
Managing Director,
MRF Limited,
No.12, Boat Club Road
3rd Avenue, R.A.Puram,
Chennai – 600028.
10.Ms.Vimla Abraham,
Director,
MRF Limited,
https://www.mhc.tn.gov.in/judis
Crl OP Nos.6014, 6154 & 6262 / 2021
Padinjarekara
Mount Wardha, Muttambalam,
P.O.Kottayam – 686 004.
11.Mr.Samir MappillaiTharain
Director
MRF Limited
“Deerhurst”, No.17, Boat Club Road
3rd Avenue, R.A.Puram
Chennai – 600028.
12.Mr.Varun Mammen,
Director,
MRF Limited,
Old No.3A, New No.6,
River Side Road,
Kottupuram,
Chennai – 600085. ... Respondent
PRAYER : Criminal Original Petition filed under Section 482 of the
Criminal Procedure Code seeking to call for the records on the file of the
IX Metropolitan Magistrate Court, Saidapet in C.C. No. 936 of 2021 and
quash the same.
For Petitioner : Mr. S. Sivaraman.
For Respondent : Mr. Abdul Saleem, Senior Counsel for
M/s.AAV Partners for R1.
https://www.mhc.tn.gov.in/judis
Crl OP Nos.6014, 6154 & 6262 / 2021
COMMON ORDER
The petitions have been filed to quash the private complaint in
C.C. No. 936 of 2021 for the alleged offences under Sections 406, 418,
420 and 120 (b) of Indian Penal Code.
2.It is alleged in the complaint that the complainant and the first
accused are the joint owners of the property being land measuring an
extent of 2 acres and 4 cents comprised in Survey Nos. 46/2A1A1,
46/2A1A2, 46/2A1A3 and 46/2A1A4 in Mathur Village, Mathavaram;
that they jointly developed the said property by constructing a
warehouse; that since the complainant had certain financial difficulties it
was decided that the first accused would help the complainant by
providing financial assistance and the complainant would transfer his
share in the above property to the first accused; that the first accused did
not provide any financial assistance as promised by him and hence, the
complainant dropped the idea of transferring his share in favour of the
first accused; that while so, the first accused dishonestly, without the
complainant's knowledge entered into a lease agreement with the accused
2 to 12 to unlawfully enrich himself; that the lessees, viz., accused 2 to
https://www.mhc.tn.gov.in/judis
Crl OP Nos.6014, 6154 & 6262 / 2021
12, were aware of the fact that the property was jointly owned by the
complainant and the first accused; that they in conspiracy with the first
accused entered into the lease agreement in order to deprive the
complainant of his 50% share in the rental income; that the actual rental
income for the said property would be Rs. 20,00,000/- and the lessees
unlawfully took the said property on a lesser rent of Rs. 14,00,000/- per
month from the first accused; and that since the accused in conspiracy
committed misappropriation and cheating of the funds of the
complainant, they are liable for the offences under Section 120(b), 406,
418 and 420 of the Indian Penal Code.
3.Mr. B. Kumar, learned Senior counsel for the petitioner in
Crl.O.P. No. 6154 of 2021 submitted that the petitioner earlier took the
premises on lease from both the complainant and the first accused.
However, they could not continue the lease after 2016 because of floods
in the area and they had to vacate the premises. Thereafter, the first
accused represented that he was the absolute owner of the property in
question and produced an unregistered sale deed, which showed that the
complainant had handed over possession to the first accused and had
https://www.mhc.tn.gov.in/judis
Crl OP Nos.6014, 6154 & 6262 / 2021
received sale consideration. Believing the representation to be true, the
petitioner entered into a lease agreement with the first accused on
03.11.2018. The rent was fixed at Rs. 17.25 per square feet. The
petitioner had been paying rent regularly to the first accused for nearly 2
years. While so, they were shocked to receive a notice from the counsel
for the complainant stating that the petitioner had unlawfully entered into
a lease agreeement with the first accused knowing fully well that the
complainant and the first accused are the joint owners of the property and
thereby, denying the rent to be paid to the complainant. The learned
Senior Counsel submitted that there were exchange of notices thereafter
and finally on 30.10.2020, they decided to vacate the premises in view of
the dispute between the complainant and the first accused. The learned
Senior Counsel submitted that even assuming that the petitioner had
erroneously entered into a lease agreement with the first accused, the said
act would not attract any of the offences alleged in the complaint.
Admittedly, they had not deceived the complainant in any manner.
Even assuming that the first accused had falsely claimed title over the
property and executed lease in favour of the petitioners, it would not
constitute any of the offences alleged. In any event, the complainant has
not denied the unregistered sale deed executed by him, in which it is
https://www.mhc.tn.gov.in/judis
Crl OP Nos.6014, 6154 & 6262 / 2021
stated that the complainant handed over possession to the first accused.
That apart, the first accused had paid consideration to the complainant
for the same. The question as to whether this document is valid or not
has to be adjudicated only before a Civil Court and prima facie if there is
evidence to show that the petitioner had acted bonafide, they cannot be
prosecuted for the offences. In the facts and circumstances of the case,
the petitioner had acted bonafide by believing the first accused. That
apart, on coming to know of the dispute, they had vacated the property
immediately. All this would show that they were not involved in the
alleged offences.
4.Mr. V.Karthik, learned Senior Counsel for the petitioners in
Crl.O.P. No. 6014 of 2021 submitted that the directors have been falsely
implicated in the impugned complaint; that there cannot be vicarious
liability for the offences under the Penal Code; and that there is nothing
in the impugned complaint to show that the petitioners had conspired to
commit the alleged offences. The learned Senior Counsel further
submitted that the eighth petitioner / A10 Vimala Abraham had ceased to
be a Director from 05.02.2019. The learned Senior Counsel also pointed
out that none of the offences were made out against the petitioners.
https://www.mhc.tn.gov.in/judis
Crl OP Nos.6014, 6154 & 6262 / 2021
5. Mr. S. Sivaraman, learned counsel for the petitioner/A1 in
Crl.O.P. No. 6262 of 2021 submitted that the complainant on receipt of
the consideration absconded and has come up with the impugned
complaint as an after thought. The sale deed could not be registered
because the property was under mortgage with a Bank. The complainant
was instrumental for the delay in redeeming the property from the bank.
In any case, he would submit that the petitioner is a co-owner admittedly
and if he had used the property, it would not amount to misappropriation.
He may be accountable only civilly. The impugned complaint is to only
harass the petitioner and no offence is made out as against him.
6.Mr.Abdul Saleem, learned Senior counsel for the complainant in
all the petitions submitted that A2 to A12 had earlier entered into a lease
agreement. In the said lease agreement, the complainant and the first
accused were shown as lessors jointly. Therefore, they were aware of the
fact that the property in question was jointly owned by the complainant
and the first accused. However, dishonestly they had entered into a lease
agreement for the second time with the first accused alone. The act of A2
https://www.mhc.tn.gov.in/judis
Crl OP Nos.6014, 6154 & 6262 / 2021
to A12 was to unlawfully enrich themselves by paying lesser rent to the
first accused though the market rental value of the property was nearly
Rs. 20,00,000/-. A2 to A12 had denied the complainant of his share of
Rs. 10,00,000/- per month as rental income. The first accused was
entrusted with the property and he had dishonestly misappropriated the
same in conspiracy with A2 to A12. The first accused had also
committed acts of cheating. The learned Senior counsel relied upon the
Judgment of the Hon'ble Supreme Court of India in Mushtaq Ahmed vs.
Mohd. Habibur Rehman Faizi reported in (1996) 7 SCC 440, wherein it
has been held that in a petition under Section 482, the Court shall not
enter into a debatable area of deciding which of the versions were true.
Hence, the learned Senior Counsel submitted that the question as to
whether A2 to A12 had entered into the lease agreement under a
bonafide impression or in conspiracy with the first accused cannot be
decided in a quash petition.
7.This Court finds that the first accused and the complainant had
bought the property jointly. The first accused claiming to be the absolute
owner of the property had executed lease in favour of A2 to A12. It is
claimed by the first accused that he obtained possession from the
https://www.mhc.tn.gov.in/judis
Crl OP Nos.6014, 6154 & 6262 / 2021
complainant by virtue of an unregistered sale deed and had also paid sale
consideration to the complainant. The question as to whether this
unregistered sale deed is valid and enforceable are matters which have to
be decided only before the Civil Court. The first accused claims
protection under Section 53-A of the Transfer of the Property Act, 1882.
The issue in the instant quash petition is not whether the first accused
had acquired absolute title over the property by virtue of the unregistered
sale deed. The issue is whether A2 to A12 had entered into a conspiracy
with the first accused for the purpose of committing breach of trust and
cheating.
8.It is now well settled that even if a sale is made by falsely
claiming title, the said sale would not amount to cheating the rival
claimant for the property. The same would apply to a situation where a
party who is entitled to half share in the property claims absolute title and
executes lease in favour of third parties. In the instant case, it is not the
case of the complainant that anybody made any representation to him and
thereby, he was deceived and made to deliver any property. In such
circumstances, the offence of cheating would not be made out. The
Hon'ble Supreme Court of India in Mohammed. Ibrahim and Others vs.
https://www.mhc.tn.gov.in/judis
Crl OP Nos.6014, 6154 & 6262 / 2021
State of Bihar and Another reported in (2009) 8 Supreme Court Cases
751, while dealing with a case of a sale made by a person claiming title
falsely held as follows:-
“20.When a sale deed is executed conveying a
property claiming ownership thereto, it may be possible
for the purchaser under such sale deed, to allege that
the vendor has cheated him by making a false
representation of ownership and fraudulently induced
him to part with the sale consideration. But in this case
the complaint is not by the purchaser. On the other
hand, the purchaser is made a co-accused.
21.It is not the case of the complainant that any of
the accused tried to deceive him either by making a
false or misleading representation or by any other
action or omission, nor is it his case that they offered
him any fraudulent or dishonest inducement to deliver
any property or to consent to the retention thereof by
any person or to intentionally induce him to do or omit
to do anything which he would not do or omit if he were
not so deceived. Nor did the complainant allege that the
first appellant pretended to be the complainant while
executing the sale deeds. Therefore, it cannot be said
that the first accused by the act of executing sale deeds
in favour of the second accused or the second accused
https://www.mhc.tn.gov.in/judis
Crl OP Nos.6014, 6154 & 6262 / 2021
by reason of being the purchaser, or the third, fourth
and fifth accused, by reason of being the witness, scribe
and stamp vendor in regard to the sale deeds, deceived
the complainant in any manner.”
9.The above observations would squarely apply to the facts of the
instant case. Hence, it cannot be said that the first accused had cheated
the complainant. The cheating or deception is said to have been made
only to A2 to A12. In such circumstances, even if A2 to A12 were aware
of the alleged false statement made by the complainant in the absence of
any deception practiced on the complainant, the offence under Section
420 of Indian Penal Code is not made out. It is needless to say that the
first ingredient for the offence of cheating under Section 415 of the
Indian Penal Code is deception. The said ingredient is not made out in
the instant case. Thus, applying the principle laid down by the Hon'ble
Supreme Court in the case cited supra, this Court holds that the offence
of cheating is not made out.
10.As regards the offence under Section 406 of the Indian Penal
Code, it is the case of the complainant that property was entrusted to the
first accused and he had misappropriated it in connivance with A2 to
https://www.mhc.tn.gov.in/judis
Crl OP Nos.6014, 6154 & 6262 / 2021
A12. The question of entrustment made by the complainant in favour of
the first accused pre-supposes that the complainant is a owner and in that
capacity he had entrusted the property to the first accused. However,
besides the fact that admittedly the first petitioner and the complainant
are the joint owners, it cannot be said that he had entrusted the property
to the first accused within the meaning of Section 405 of the Indian Penal
Code. That apart, the possession of the property was handed over after
receiving sale consideration which is recorded in the unregistered sale
deed. The complainant has not denied the fact of execution of the said
sale deed and cannot justifiably refute the said document. His only case
is that the said document is invalid since it is not registered. However,
the said document can be used for collateral purposes viz., to show that
the complainant had handed over possession after receiving sale
consideration. As stated earlier even otherwise, there cannot be any
entrustment in the case of joint owners. The meaning of the word
'entrustment' has been elaborated by the Hon'ble Supreme Court of India
in Rashikumar Vs. Mahesh Kumar Bhada reported in (1997) 2 SCC
397, which is extracted hereunder:-
“13.....The expression "entrustment" carries with it
the implication that the person handing over any
https://www.mhc.tn.gov.in/judis
Crl OP Nos.6014, 6154 & 6262 / 2021
property or on whose behalf that property is handed over
to another, continues to be its owner. Entrustment is not
necessarily a term of law. It may have different
implications in different contexts. In its most general
significance, all its imports is handing over the
possession for some purpose which may not imply the
conferment of any proprietary right therein. The
ownership or beneficial interest in the property in respect
of which criminal breach of trust is alleged to have been
committed, must be in some person other than the
accused and the latter must hold it on account of some
person or in some way for his benefit.”
11.Further, the Hon'ble Supreme Court of India in Velji Raghavji
Patel Vs.State of Maharashtra reported in AIR 1965 SC 1433, had held
that where one partner chooses to use the property for his own purpose,
he may be accountable to the other partner civilly and the offence of
misappropriation would not be made out. The relevant observations are
extracted hereunder:-
“9.Mr. Chatterjee finally contends that the act of
the appellant will at least amount to dishonest
misappropriation of property even though it may not
amount to criminal breach of trust and, therefore, his
https://www.mhc.tn.gov.in/judis
Crl OP Nos.6014, 6154 & 6262 / 2021
conviction could be altered from one under s.409 to
that under s.403. Section 403 runs thus :
"Whoever dishonestly misappropriates or converts to
his own use any moveable property, shall be punished
with imprisonment of either description for a term
which may extend to two years, or with fine, or with
both."
It is obvious that an owner of property, in whichever
way he uses his property and with whatever intention
will not be liable for misappropriaion and that would
be so even if he is not the exclusive owner thereof. As
already stated, a partner has, undefined ownership
along with the other partners over all the assets of the
partnership. If he chooses to use any of them for his
own purposes he may be accountable civilly to the
other partners. But he does not thereby commit any
misappropriation. Mr. Chatterjee's alternative
contention must be rejected.“
Thus, for the above reasons, this Court finds that none of the offences are
made out against the petitioners and hence, the impugned complaint is
liable to be quashed.
12.Accordingly, these Criminal Original Petitions are allowed and
https://www.mhc.tn.gov.in/judis
Crl OP Nos.6014, 6154 & 6262 / 2021
the C.C. No. 936 of 2021 on the file of the IX Metropolitan Magistrate
Court, Saidapet is quashed. Consequently, the connected Miscellaneous
Petitions are closed.
13.04.2023
ay
Index: Yes/No
Speaking Order / Non-Speaking Order
Neutral Citation: Yes / No
To
The IX Metropolitan Magistrate,
Saidapet.
SUNDER MOHAN, J
https://www.mhc.tn.gov.in/judis
Crl OP Nos.6014, 6154 & 6262 / 2021
ay
Crl.O.P. Nos. 6014, 6154 & 6262 of 2021
and
Crl.M.P. Nos. 3940, 3939, 4059,
4060, 4134 & 4135 of 2021
Dated: 13.04.2023
https://www.mhc.tn.gov.in/judis
