Madras High Court
Santha @ Saraswathi vs The State on 18 April, 2023
Crl.O.P.No.2846 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.04.2023
CORAM
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
Crl.O.P.No.2846 of 2021
and
Crl.M.P.Nos.1589 & 1591 of 2021
Santha @ Saraswathi ... Petitioner
Vs.
1.The State
Rep. by the Inspector of Police,
District Crime Branch
Salem District.
2. P.Sundaramoorthy ... Respondent
PRAYER: Criminal Original Petition filed under Section 482 of the Criminal
Procedure Code seeking to call for the records pertaining to the case in
C.C.No.98/2020 on the file of the Judicial Magistrate Court No.VI at Salem
and quash the same.
For Petitioners : M/s.R.Jayaprakash
For Respondent : Mr.A.Damodaran, Addl. Public Prosecutor, [R.1]
: No appearance [R.2]
1/8
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.2846 of 2021
ORDER
The petition is to quash the final report filed for the offences under
Section 120(b), 468, 471 & 420 IPC read with Section 109 IPC.
2. It is alleged in the final report that the petitioner herein who is the
sister of the de facto complainant, by falsely claiming 1/3rd share in the
disputed property, had executed a sale deed in favour of A.2; that the de-
facto complainant is absolutely entitled to the property by virtue of a
settlement deed executed by his mother in his favour.
3. The learned counsel for the petitioner would submit that the
allegation even if accepted to be true does not attract any of the offences.
There is no allegation of forgery. Admittedly, the petitioner is the sister of
the 2nd respondent and she is entitled to 1/3rd share in the property. Even
assuming that she had executed a sale deed by falsely claiming title over the
property, the said offences are not made out.
4. The learned Additional Public Prosecutor would submit that
dispute is between the 1st accused and the 2nd respondent who are closely
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Crl.O.P.No.2846 of 2021
related to each other. The question of whether the petitioner has falsely
claimed 1/3rd share in the property and executed a sale deed in favour of
A.2 has to be adjudicated only during the trial. Hence, he prayed for
dismissal of this quash petition.
5. Though notice was served on the 2nd respondent, none had entered
appearance on his behalf.
6. This Court on perusal of the impugned final report finds that this is
a case of property dispute between the petitioner and the de-facto
complainant. The petitioner is the sister of the de-facto complainant. It is a
case of the de-facto complainant that he and his father are entitled to the
disputed property and the petitioner has no right in the property. This Court
finds that the facts of the case are squarely covered by the judgement
of the Hon’ble Supreme Court reported in (2009) 8 SCC 751 -
Mohammed Ibrahim and Others Vs. State of Bihar and Another. The
relevant observations made in the said Judgment is extracted hereunder for
better understanding:-
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Crl.O.P.No.2846 of 2021
“17. When a document is executed by a person claiming
a property which is not his, he is not claiming that he is
someone else nor is he claiming that he is authorised by
someone else. Therefore, execution of such document
(purporting to convey some property of which he is not the
owner) is not execution of a false document as defined under
Section 464 of the Code. If what is executed is not a false
document, there is no forgery. If there is no forgery, then
neither Section 467 nor Section 471 of the Code are attracted.
18. Let us now examine whether the ingredients of an
offence of cheating are made out. The essential ingredients of
the offence of “cheating” are as follows: (i) deception of a
person either by making a false or misleading representation
or by dishonest concealment or by any other act or omission;
(ii) fraudulent or dishonest inducement of that person to either
deliver any property or to consent to the retention thereof by
any person or to intentionally induce that person so deceived
to do or omit to do anything which he would not do or omit if
he were not so deceived; and (iii) such act or omission causing
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Crl.O.P.No.2846 of 2021
or is likely to cause damage or harm to that person in body,
mind, reputation or property.
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
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Crl.O.P.No.2846 of 2021
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 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.”
7. It is further seen that a civil suit was filed by the 2 nd respondent in
OS.No.222 of 2016, on the file of the IV Additional District Munsif Court,
Salem seeking for a declaration, that the sale deeds in favour of the
petitioner and others as null and void and for permanent injunction against
the petitioner and the legal heirs of A.2. The said suit was decreed ex-parte
by the judgement dated 25.06.2019. In such circumstances, this Court is of
the view that the impugned proceeding as against the petitioner is an abuse
of process of law and liable to be quashed.
8. In the instant case, this Court finds that the purchaser of the
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Crl.O.P.No.2846 of 2021
property is also an accused. Therefore, there is no question of deception
practiced by the petitioner. Admittedly, the petitioner has not forged any
document. The false claim of title by the petitioner will not amount to
creating a false document. Hence, this Court is inclined to quash the
proceeding as against the petitioner.
9. Accordingly, the Criminal Original Petition stands allowed.
Consequently, the connected Miscellaneous Petitions are closed.
18.04.2023
Index : Yes/No
Internet : Yes/No
Neutral Citation :Yes/No
shr
To
1.The Inspector of Police,
District Crime Branch
Salem District.
2.The Judicial Magistrate Court No.VI at Salem.
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.2846 of 2021
SUNDER MOHAN. J,
shr
Crl.O.P.No.2846 of 2021
and
Crl.M.P. Nos.1589 & 1591 of 2021
18.04.2023
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.2846 of 2021
https://www.mhc.tn.gov.in/judis
