Madras High Court

Chandrappa vs State on 20 April, 2023

                                                                                Crl OP No.22144 / 2019

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                        RESERVED ON   : 12.04.2023
                                          PRONOUNCED ON : 20.04.2023

                                                          CORAM :

                                  THE HONOURABLE MR. JUSTICE SUNDER MOHAN

                                Criminal Original Petition No. 22144 of 2019
                                                    and
                                        Crl.M.P. No. 11488 of 2019
                     Chandrappa                         ... Petitioner
                                                           Versus

                     1. State
                        Rep., by the Inspector of Police,
                        Hosur Town Police Station,
                        Hosur,
                        Krishnagiri District.

                     2. K.Palliappa                                    ... Respondents


                     PRAYER : Criminal Original Petition filed under Section 482 of the
                     Criminal Procedure Code seeking to call for the records relating to the
                     Charge Sheet in C.C. No.277 of 2015 on the file of the Judicial
                     Magistrate No.II, Hosur, quash the same in so far as the petitioner is
                     concerned.


                                  For Petitioner    : Mr. R. Bharath kumar.

                                  For Respondents : Mr. A. Damodaran,
                                              Additional Public Prosecutor for R1.


https://www.mhc.tn.gov.in/judis
                     1/11
                                                                                 Crl OP No.22144 / 2019

                                               Ms. R.Poornima for R2.


                                               ORDER

The petition is to quash the final report for the alleged offence

under Sections 120(B), 406, 418, 423, 465, 468, 471 and 474 of the

Indian Penal Code.

2. It is alleged in the final report that the defacto complainant

acquired the properties in S.No.255/1 measuring 0.17 cents, and in

S.No.294/3 measuring 0.20 cents, in Hosur Rural Village by virtue of

partition deed in the family; that he had executed a power of attorney in

favour of the second accused on 03.03.1997; that based on the said

power of attorney, A2 divided the properties into plots and sold it to third

parties; that the defacto complainant later came to know that A2 had

misused the power of attorney and hence he cancelled the power of

attorney in the year 2004; that thereafter the accused joined together and

entered into a sale agreement in respect of the property belonging to the

defacto complainant and obtained an advance from third parties; that the

power of attorney was executed by the defacto complainant in favour of

A2 at the instance of the petitioner who was then a VAO.

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Crl OP No.22144 / 2019

3. The learned counsel for the petitioner, who is arrayed as A4,

would submit that the allegations even if accepted to be true, would not

constitute any offence against the petitioner. The defacto complainant

had executed a power of attorney in favour of A2 and had admittedly

cancelled it only in the year 2004. It cannot be said that the defacto

complainant was not aware of the consequences of executing a power of

attorney in favour of the second accused. In any event, the second

accused had acted upon the said power on the very same day and sold the

properties in favour of third parties. There is no forgery or cheating

alleged. In any event, the alleged power was given in the year 1997.

However, the FIR which culminated in the impugned final Report was

given in the year 2006. The impugned proceedings are to only get over

the law of limitation to prosecute the civil proceedings. He would

further submit that the petitioner is aged 80 years now and prayed for

quashing the final report against the petitioner.

4. The learned counsel for the defacto complainant and the learned

Additional Public Prosecutor submitted that there are allegations in the https://www.mhc.tn.gov.in/judis

Crl OP No.22144 / 2019

impugned final report that the power of attorney was executed by the

defacto complainant in favour of A2 at the instance of the petitioner.

The petitioner was then working as a Village Administrative Officer and

he was able to exercise influence over the second respondent. The

question of whether the petitioner is innocent or acted in connivance with

the other accused to grab the property of the defacto complainant has to

be adjudicated only during the trial. Hence, they prayed for the dismissal

of this petition.

5. This Court, on perusal of the impugned final report finds that the

only allegation against the petitioner who was arraigned as A4 is that he

was the Village Administrative Officer of the concerned Village and that

he instructed the defacto complainant to give power of attorney in favour

of the second accused. It is alleged that the other accused had already

illegally dealt with the property belonging to the defacto complainant.

Since the petitioner was the Village Administrative Officer, they

believed his representation and executed a power of attorney in favour of

A2. The occurrence took place in the year 1997. However, the First

Information Report was registered in the year 2006. There is no reason

why the defacto complainant waited for such a long time to lodge the https://www.mhc.tn.gov.in/judis

Crl OP No.22144 / 2019

complaint. Admittedly, he had cancelled the power in the year 2004. He

was aware of the sales made by the power agent in favour of third

parties. It is not the case of the defacto complainant that his signature

was forged and documents were executed by the accused. The defacto

complainant has not filed any Civil Suit challenging the power of

attorney or the sale deeds executed based on the power. An action which

is barred by limitation under Civil law cannot be permitted to be

investigated by the Police in the absence of the ingredients attracting the

offence.

6. The allegation that he was misled by the petitioner even if it is

true, would not constitute any of the offences against him. The defacto

complainant cannot plead ignorance of the consequences of executing a

power of attorney in favour of A2. He was aware of the fact that A2 had

acted upon the power of attorney and executed sale deeds in favour of

third parties. If there is any dispute with regard to the terms of the

agreement, the defacto complainant ought to have approached the Civil

Court for remedy. In the instant case, he had not done so. The validity of

the power of attorney and the subsequent sale cannot be the subject

matter of a prosecution. The Honourable Supreme Court in Mohammed. https://www.mhc.tn.gov.in/judis

Crl OP No.22144 / 2019

Ibrahim and Others vs. State of Bihar and Another reported in (2009) 8

Supreme Court Cases 751 had held that even if a sale is made by making

a false claim of title an offence of forgery is not made out. Further, in

respect of cheating, it is the purchasers who can be said to be deceived.

In the instant case, they are also the accused. The relevant observations

made in the said Judgment is extracted hereunder for better

understanding:-

“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 https://www.mhc.tn.gov.in/judis

Crl OP No.22144 / 2019

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 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

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Crl OP No.22144 / 2019

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 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. Thus, for all the above reasons, this Court is of the view that the

impugned proceedings against the petitioner are clearly an abuse of

process of law. For an occurrence which is said to have taken place in

the year 1997, First Information Report was registered in the year 2006,

besides the fact that no offence is made out as against the petitioner.

Hence, the impugned final report is liable to be quashed as against the

petitioner.

8. Accordingly, this Criminal Original Petition is allowed by

quashing the C.C. No.277 of 2015 as against the petitioner on the file of

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Crl OP No.22144 / 2019

the Judicial Magistrate No.II, Hosur. Consequently, the connected