Chandramohan vs S. Dhandapani
2023 Latest Caselaw 4372 Mad

                                                                     Crl OP Nos.19570 & 19396 of 2019

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED: 18.04.2023

                                                       CORAM :

                                  THE HONOURABLE MR. JUSTICE SUNDER MOHAN

                                   Criminal Original Petition Nos.19570 & 19396 of 2019
                                                             and
                                     Crl.M.P.Nos.10019 of 2019, 9933 & 9934 of 2019

                     Crl OP No.19570 of 2019

                     1. Chandramohan

                     2. Sakthivel

                     3. Natarajan

                     4. Maragatham

                     5. Rukmani

                     6. Selvaraj

                     7. Velusamy

                     8. Chinnasamy

                     9. Murugesan

                     10. Mayilsamy

                     11. Kuppusamy                                 ... Petitioners/Accused

                                                         Versus

                     S. Dhandapani                                  ... Respondent/Complainant

https://www.mhc.tn.gov.in/judis

Crl OP Nos.19570 & 19396 of 2019

Prayer : Criminal Original Petition has been filed under Section 482 of the Criminal Procedure Code seeking to call for the records and quash the S.T.C.No.7217 of 2019 pending on the file of the learned Judicial Magistrate No.7, Coimbatore, as against the petitioners.

For Petitioners : Mr.B.Kumar, Senior Counsel for M/s.K.M.D.Muhilan

For Respondent : Mr.K.Govi Ganesan

Crl OP No.19396 of 2019

1. Isvarmurti

2. Shenbagavalli

3. Kartik

4. Shanmugha Priya ... Petitioners/Accused

Versus

S. Dhandapani ... Respondent/Complainant

Prayer : Criminal Original Petition has been filed under Section 482 of the Criminal Procedure Code seeking to call for the entire records in S.T.C.No.7217 of 2019 pending on the file of the learned Judicial Magistrate No.7, Coimbatore, quash the same.

For Petitioners : Mr.Rahul Balaji

For Respondent : Mr.K.Govi Ganesan

https://www.mhc.tn.gov.in/judis

Crl OP Nos.19570 & 19396 of 2019

COMMON ORDER

These Criminal Original Petitions have been filed to quash the

private complaint filed for the offences under Sections 120(b), 294(b),

341, 427, 508(2) and 506(ii) of the Indian Penal Code.

2. It is alleged in the complaint that the respondent is a cultivating

tenant in the land measuring 13.45 acres in Survey Nos.476, 477/1, 477/2

and 473 of Putchanur Village, Coimbatore; that the petitioners on

19.09.2017 with the help of Officials and Policeman entered into the land

in possession of the respondent and constructed a fence around the land

besides causing damage to the coconut trees and other agricultural

equipments in the said land; that the petitioners had given a complaint to

the Police on 23.09.2017; that on 28.11.2017 again the petitioners

entered into the land and abused the respondent in filthy language; that

once again the respondent gave a complaint to the Police on 28.11.2017

and thereafter the Police did not take any action; that the respondent’s

father had obtained an order of interim injunction against the first

petitioner and in such circumstances, the respondent’s possession is

established.

https://www.mhc.tn.gov.in/judis

Crl OP Nos.19570 & 19396 of 2019

3. (a) Mr.B.Kumar, learned Senior Counsel appearing for the

petitioners would submit that the respondent had failed to establish that

he is a cultivating tenant and that he is in possession of the property

before the Authorities and before this Court in the Writ proceedings. The

Application filed by the respondent to declare him as a cultivating tenant

was negatived by the District Revenue Officer on 03.07.2017. The

Complainant filed a Writ Petition in WP No.21793 of 2017 challenging

the said order. On 25.07.2019, this Court dismissed the said Writ

Petition.

3. (b) The learned Senior Counsel further submitted that the

respondent had also filed a suit for partition against the petitioners

claiming 1/5th share in the property. The said suit for partition which is

contrary to their stand that they were cultivating tenants came to be

dismissed for default.

3. (c) The respondent had challenged the action of the petitioner in

putting up a fence before this Court in WP No.25665 of 2017. This Court

by the order dated 25.07.2019 dismissed the said Writ Petition stating https://www.mhc.tn.gov.in/judis

Crl OP Nos.19570 & 19396 of 2019

that the respondent had failed to establish that he was a cultivating tenant

and he had been in possession of the lands. In the said writ petition the

respondent had stated that he was dispossessed which is contrary to the

allegations in the complaint.

3. (d) The learned Senior Counsel further submitted that the

respondent gave a Report to the Police on 28.11.2017 alleging trespass

and destruction of crops by the petitioners. The said complaint was

closed after due enquiry and the Police found that the complaint did not

disclose any congnisable offence. The respondent had not challenged the

said Final Report. However, he has come up with this impugned

complaint by suppressing several material facts.

4. The learned counsel appearing for the petitioners in Criminal OP

No.19396 of 2019 adopted the submissions made by the learned Senior

Counsel and submitted that the petitioners were agricultural labourers

and they have been falsely implicated in the impugned complaint

5. Mr.K.Govi Ganesan, learned counsel appearing for the

respondent submitted that the allegations attract the offences alleged. https://www.mhc.tn.gov.in/judis

Crl OP Nos.19570 & 19396 of 2019

The respondent had not made any false averment in the Writ Petition.

The respondent is still in possession of a portion of the property. The

petitioners attempted to disturb his possession in respect of the portion

where his house is situated. The allegations attract the offences and this

Court cannot interfere in the instant quash petition when there is a factual

controversy. The learned counsel further submitted that the power under

Section 482 of the Code of Criminal Procedure has to be exercised only

in rarest of rare cases.

6. This Court on perusal of the impugned complaint finds that the

entire complaint is on the premise that the respondent is in possession of

property in dispute. Admittedly, the respondent's attempt to declare him

as a cultivating tenant in the property failed before the Revisional

Authority and before this Court in WP No.21793 of 2017. This Court

had dismissed the respondent’s Writ Petition and held that the order

passed by the DRO denying the petitioners claim to be declared as

cultivating tenant was justified. Further this Court finds that WP

No.25605 of 2017 filed by the respondent challenging the action taken

by the petitioners with the aid of Police and Officials to fence the

property also came to be dismissed by the order dated 25.07.2019. This

https://www.mhc.tn.gov.in/judis

Crl OP Nos.19570 & 19396 of 2019

Court had observed as follows:

“Since the petitioners failed to establish that

they are cultivating tenants and have been in

possession in lands they are not entitled to for the

reliefs sought for in this petitions.”

7. Though it is stated that the Writ Appeal is pending challenging

this finding, this Court is of the view that the respondent has not

established his right as cultivating tenant and his possession in the

disputed property. In the affidavit filed in support of the Writ Petition

dated 20.09.2017 in WP No.25665 of 2017, the respondent has stated he

was dispossessed. Further it is seen that on the very same set of facts, the

respondent had approached the Police. The said complaint was enquired

into and the Police had found that the respondent had not established that

he was a cultivating tenant and that he was in possession of the disputed

property. The respondent was advised to seek appropriate remedy before

the Civil Court.

8. Further it is seen that there is nothing in the impugned complaint

to show that the words uttered by the petitioners amounted to real threat https://www.mhc.tn.gov.in/judis

Crl OP Nos.19570 & 19396 of 2019

in order to attract the offence of criminal intimidation. As regards the

offence under Section 427 IPC, it is seen that the respondent’s right has

not been established and in view of the same it cannot be said that any

wrongful loss was caused to him. In this regard, the Judgment cited by

the learned Senior Counsel in Kolathukara Vaiyapuri Goundan v.

Kuppuswami Goundan, reported in Part 14 SCConline 331, wherein it

is stated that in order to attract the offence under Section 427 IPC, it

should be shown that the complainant had suffered wrongful loss viz.

that he had unlawfully lost the property which he is legally entitled to.

Since there is a finding by this Court in the writ proceedings that the

respondent has failed to establish possession, the alleged damage cannot

be said to have caused wrongful loss to him. The above judgment

squarely applies to the facts of this case. Hence the offence under

Section 427 is also not made out.

9. From the above facts, it is clear that the impugned complaint is

nothing but an abuse of process of law. The respondent having failed in

all attempts to establish his right as cultivating tenant or his possession

has come up with this impugned complaint. The Police have rightly https://www.mhc.tn.gov.in/judis

Crl OP Nos.19570 & 19396 of 2019

refused to take action on the respondent's complaint. The respondent has

not challenged the said report. Therefore, this Court is inclined to quash

the impugned complaint. Both the Criminal Original Petitions are

allowed. Consequently, the connected miscellaneous petitions are

closed.

18.04.2023

jv

Index: Yes/No Speaking Order / Non-Speaking Order Neutral Citation: Yes / No

To

1. The Judicial Magistrate No.7, Coimbatore.

https://www.mhc.tn.gov.in/judis

Crl OP Nos.19570 & 19396 of 2019

SUNDER MOHAN, J.

jv

Criminal Original Petition Nos.19570 & 19396 of 2019 and Crl.M.P.Nos.10019 of 2019, 9933 & 9934 of 2019

18.04.2023

https://www.mhc.tn.gov.in/judis