Madras High Court
E.N.Madeswaran vs The State Rep. By on 27 April, 2023
Crl.O.P.No.1630 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.04.2023
CORAM
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
Crl.O.P.No.1630 of 2021
and
Crl.M.P.Nos.957 & 958 of 2021
1.E.N.Madeswaran
2.E.N.Chandrasekaran
... Petitioners
Vs.
1. The State Rep. by
The Inspector of Police,
Anti-Land Grabbing Special Cell,
Namakkal,
(Crime No.29/2011)
2. T.Premkumar
... Respondents
PRAYER: Criminal Original Petition filed under Section 482 of the
Criminal Procedure Code seeking to call for the records relating to the
Criminal Case in C.C.No.35 of 2020 on the file of the Ld.Judicial
Magistrate, Paramathi, quash the same by allowing this Criminal Original
Petition.
For Petitioners : M/s.N.Manoharan
For Respondent : Mr.A.Damodaran, Addl. Public Prosecutor [R.1]
: Mr.M.Johncaleb [R.2]
1/8
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.1630 of 2021
ORDER
The Petition is to quash the final report for the alleged offences under
Sections 417, 420, 468, 471, 506(ii) read with Section 109 IPC and Section
82 of the Registration Act.
2. It is alleged in the final report that A.1 and A.2 are brothers; that
A.3 is the purchaser of the properties and A.4 is the brother of the accused
A.3; that A.3 and A.4 are the petitioners before this Court; that as per the
registered Will dated 30.07.1985, the properties of one Karuppan was
bequeathed to his grandsons, namely, Vijaya Kumar, Prem Kumar, Gobi
David @ Gabrial and Peter @ Victor; that during the lifetime of Karuppan
he sold the property in Survey No.191/1 and the remaining properties in
Survey Nos.189/1B, 190/1B and 190/1E devolved upon his grandsons as
per the Will; that A.1 and A.2 in order to create an encumbrance in the said
property had sold the property measuring an extent of 4.25 acres in Survey
Nos.189/1B, 190/1B and 190/1E to the 1st petitioner herein; and that the
claim of title over the property by A.1 and A.2 was contrary to the
registered Will executed by the said Karuppan and thus, guilty of the
aforesaid offences.
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Crl.O.P.No.1630 of 2021
3.(a) Mr.N.Manoharam, learned counsel for the petitioners submitted
that A.1 and A.2 had acquired the property by virtue of an oral partition
held during the lifetime of the said Karuppan in the year 1985. The certified
copy of the said Will would show that the properties that were bequeathed
was only in Survey No.191/1, measuring an extent of 3.32 acres. Even that
property was sold during the lifetime of the testator, Karuppan. Though
initially the will purported to bequeath all the properties. However, the
sentence which stated that the other properties are also bequeathed was
struck off as is clear from the certified copy of the Will obtained from the
Registrar’s Office. In any case, the learned counsel submitted that even
assuming the 2nd respondent's case is true, it is a case of false claim of title
and therefore, the case would be 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.
3(b). The learned counsel further submitted that the alleged
transactions took place in the year 2006, whereas the FIR which culminated
the impugned final report was lodged in the year 2011. The delay would
show that the 2nd respondent's motive is to arm twist the petitioner and
hence prayed for quashing of the impugned final report.
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Crl.O.P.No.1630 of 2021
4. The learned counsel for the 2nd respondent submitted that though
the original complaint was that his uncle had executed a sale deed in favour
of A.3 and A.4 in order to create an encumbrance in the property, he found
out subsequently that A.1 and A.2 shown in the impugned final report have
actually impersonated his uncles and sold the property. He produced an
Adhar Card showing the father's name of A.1 as one Francis. The learned
counsel, therefore, submitted that it is not a case of false claim of title and
there is impersonation which has to be adjudicated only before the Trial
Court.
5. Since, the learned counsel had made a submission which was
contrary to his own case in the FIR, this Court directed the learned
Additional Public Prosecutor to verify as to whether there is any
impersonation in this case. The learned Additional Public Prosecutor on
instructions submitted that the respondent police had verified and found
that Karuppan had changed his name as Francis and the 1st accused A.1 and
A.2 have been showing their father’s name as Karuppan in some places and
Francis in certain other places and therefore, there is no impersonation in
this case. He further submitted that it is a case of the petitioners having
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Crl.O.P.No.1630 of 2021
purchased the property from A.1 and A.2, who falsely claimed title over the
property contrary to the Will executed by their father.
6. This Court on perusal of the impugned final report finds that the
case of the 2nd respondent that there was impersonation is not correct.
Firstly, because it is contrary to his own case and in an attempt to sustain
the impugned final report, the 2nd respondent sought to introduce a new
case. The respondent police have verified and found that there was no
impersonation in the case and the father of the first two accused is
Karuppan alias Francis. Therefore, this Court finds that the allegation of
impersonation as against the A.1 and A.2 is a desperate attempt to sustain
the impugned final report. As regards the allegation in the final report, this
Court finds that A.1 and A.2 had claimed title over the property which
allegedly belonged to the 2nd respondent and his brother by virtue of a
Will. The allegations at best would show that they had falsely claimed title
over the property. This Court would not go into the question of whether by
the Will the testator bequeathed the property in favour of the 2nd
respondent. It is for the Civil Court to consider that issue. On the admitted
facts, this case is covered by the judgment of the Hon'ble Apex Court
reported in (2009) 8 SCC 751- Mohammed Ibrahim and Others Vs. State
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Crl.O.P.No.1630 of 2021
of Bihar and Another. The relevant observations are as follows:-
“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
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Crl.O.P.No.1630 of 2021
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."
Therefore, this Court finds that the impugned prosecution as against the
petitioner is an abuse of process of law and hence liable to be quashed.
7. Accordingly, the Criminal Original Petition stands allowed.
Consequently, the connected Miscellaneous Petitions are closed.
27.04.2023
Index : Yes/No
Internet : Yes/No
Neutral Citation :Yes/No
shr
To
1. The Inspector of Police,
Anti-Land Grabbing Special Cell,
Namakkal.
2. The Judicial Magistrate, Paramathi.
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.1630 of 2021
SUNDER MOHAN. J,
shr
Crl.O.P.No.1630 of 2021
and
Crl.M.P. Nos.957 & 958 of 2021
27.04.2023
https://www.mhc.tn.gov.in/judis
