Madras High Court
S.Hariharan vs The State Of Tamil Nadu on 28 July, 2023
Crl.O.P.No.22067 of 2016 &
W.P.No.32926 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.07.2023
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Orders Reserved On Orders Pronounced On
10.11.2022 28.07.2023
Crl.O.P.No.22067 of 2016
&
Crl.M.P.No.10242 of 2016
and
W.P.No.32926 of 2016
&
W.M.P.No.28471 of 2016
Crl.O.P.No.22067 of 2016:-
S.Hariharan ... Petitioner
Vs.
1.The State of Tamil Nadu
Rep. by Deputy Superintendent of Police,
Chengalpattu Road,
Sriperumpudur – 602 105.
2.The Inspector of Police,
Somangalam Police Station,
Kancheepuram District – 602 301.
1/21
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.22067 of 2016 &
W.P.No.32926 of 2016
3.P.Srikanth
4.S.Sripriya ... Respondents
PRAYER: Criminal Original Petition is filed under Section 482 of the Code
of Criminal Procedure, to call for the records of the second respondent
relating to Crime No.391 of 2016 and quash the same.
For Petitioner : Mr.K.Ravi
for Mr.R.Natesh Kumar
For R1 and R2 : Mr.L.Baskaran
Government Advocate (Crl. side)
For R3 and R4 : Mr.R.Nandhakumar
Legal Aid Counsel
W.P.No.32926 of 2016:-
S.Hariharan ... Petitioner
Vs.
The Deputy Superintendent of Police,
Sriperumpudur,
Chengalpattu Road,
Sriperumpudur. ... Respondent
PRAYER: Writ Petition is filed under Article 226 of the Constitution of
India, praying for issuance of a Writ of Certiorari, calling for the records of
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Crl.O.P.No.22067 of 2016 &
W.P.No.32926 of 2016
the respondent relating to the summons in C.No.C.1/4018/IGP-NZ/201,
dated 13.09.2016, issued under Section 160 Cr.P.C. and quash the same.
For Petitioner : Mr.K.Ravi
for Mr.R.Natesh Kumar
For Respondent : Mr.L.Baskaran
Government Advocate (Crl. side)
COMMON ORDER
Since the issues involved in both the Criminal Original Petition and
the Writ Petition are one and same, they are heard together and disposed of
by this common order.
2. Crl.O.P.No.22067 of 2016 is filed to quash the proceedings,
relating to Crime No.391 of 2016, on the file of the Inspector of Police,
Somangalam Police Station, Kancheepuram District.
3. W.P.No.32926 of 2016 is filed to quash the summon issued under
Section 160 Cr.P.C. by the Deputy Superintendent of Police,
Sriperumpudur, dated 13.09.2016, in C.No.C.1/4018/IGP-NZ/201, directing
the petitioner to appear before him on 15.09.2016 at 10.00 a.m. for enquiry.
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.22067 of 2016 &
W.P.No.32926 of 2016
4. The case of the prosecution is that, on 17.02.2012 the de-facto
complainant/third respondent in Crl.O.P.No.22067 of 2016 viz., Srikanth,
purchased lands, to an extent of 2.85 acres, situated at Malaipattu Village,
Kanchipuram District, from one Shobana Chandramouli in his wife name,
Sripriya, who is the fourth respondent in Crl.O.P.No.22067 of 2016, vide
Document No.691/2012. Thereafter, they were in peaceful possession and
enjoyment of the said lands. Subsequently, one Sunil Raheja, who is the
friend of the de-facto complainant, introduced the petitioner to the de-facto
complainant and his wife. On coming to know about the share market
business of Sunil Raheja, the de-facto complainant's wife intended to
purchase shares from the share market and informed the same to him. For
purchase of shares, the said Sunil Raheja asked money from the de-facto
complainant's wife, for which, she informed she has no liquid cash. Hence,
the said Sunil Raheja informed her to give the documents relating to the
above said lands to the petitioner. Thereafter, the petitioner obtained her
signatures in stamp papers and blank papers in the Sub-Registrar Office,
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Crl.O.P.No.22067 of 2016 &
W.P.No.32926 of 2016
T.Nagar, Chennai and registered a Power of Attorney Deed, dated
16.05.2013, in respect of the above said lands in his favour, to raise money.
Thereafter, the petitioner not bought any share for her. While so, in August,
2016, the de-facto complainant got information that some strangers
frequently visiting the lands, on 14.08.2016, the de-facto complainant along
with his wife and brother-in-law, Srihari, visited the lands, wherein they saw
the petitioner and certain others measuring the land. When they questioned
the petitioner about the same, he informed them that he had sold the land to
one Bharath, which gave rise to a verbal quarrel between them, the petitioner
and others abused the de-facto complainant's group, beat them with hands,
and threatened them with dire consequences. Hence, the present complaint.
5. The learned counsel for the petitioner submitted that the de-facto
complainant lodged the present complaint against the petitioner in respect of
a transaction, which is purely civil in nature and that was concluded more
than three years ago. The said civil transaction was between the de-facto
complainant and his wife Sripriya and one Sunil Raheja of Mumbai and a
Mumbai Company called ''Big Nile Ventures Limited''.
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.22067 of 2016 &
W.P.No.32926 of 2016
6. In order to discharge the de-facto complainant's obligations to Big
Nile Ventures Limited, his wife Sripriya executed a registered General
Power of Attorney, dated 16.05.2013, in favour of the petitioner,
empowering him to sell her lands at Malaipattu Village, Kanchipuram
District. Pursuant to the said Power of Attorney, a sale deed was executed
on 04.06.2013 in favour of P.Bharath. Thereafter, she filed the Civil Suit in
C.S.No.379 of 2013 against the petitioner, P.Bharath [purchaser] and the
Sub-Registrar, Sunguvarchattram, Chengalpattu, before this Court and the
same was rejected. She filed W.P.No.21183 of 2013 seeking an
investigation into the said sale transaction, which also ended in dismissal.
P.Bharath, the purchaser filed W.P.No.19495 of 2013 for release of the sale
deed withheld by the Sub-Registrar, which was allowed, after filing of a
contempt petition, the sale deed was handed over to him.
7. The learned counsel for the petitioner further submitted that though
in the F.I.R., the date of occurrence is mentioned as '14.08.2016', the delay
of 23 days in registering the F.I.R. not explained. Though the complaint is
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Crl.O.P.No.22067 of 2016 &
W.P.No.32926 of 2016
stated to have been given on 06.09.2016, on 01.09.2016 itself the petitioner
was called over phone by a personnel in the Office of the first
respondent/Deputy Superintendent of Police, Sriperumpudur, asking him to
appear and give details in connection with the complaint. The petitioner had
promptly sent, entire details with all documents by Mail to the official Mail
I.D. of the first respondent and also through his Advocate, all the papers
with statement of facts to the Office of the first respondent. Since the
respondent Police were insisting the petitioner's presence, he apprehended
that they were bent upon arresting him, not with a view to eliciting any fact,
but with the sole intention to harass him and help the de-facto complainant.
Hence, the petitioner filed Crl.O.P.No.20822 of 2016 for anticipatory bail.
Only when the de-facto complainant filed an intervening application in that
Anticipatory Bail Petition, the petitioner understood that there is an attempt
to suppress real facts and the Police are acting hand in glove with the de-
facto complainant calling the petitioner on 01.09.2016, as if there was
complaint by the de-facto complainant's wife and thereafter only, the
petitioner came to know about the complaint in Crime No.391 of 2016 given
subsequently on 06.09.2016 by the de-facto complainant. After seeing the
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.22067 of 2016 &
W.P.No.32926 of 2016
statement of the petitioner and the papers submitted by him and
understanding that the complaint of the de-facto complainant's wife cannot
be sustained in the eye of law, and it was a civil dispute, a time-barred,
the de-facto complainant gave another complaint, dated 06.09.2016 to
Somangalam Police Station and the same was registered on the same day as
Crime No.391 of 2016 and forwarded to Manimangalam Police Station, for
further enquiry. In order to give a criminal colour, an allegation under
Section 506(ii) I.P.C. was added in that complaint.
8. The learned counsel for the petitioner further submitted that after
coming to know about Crime No.391 of 2016, the petitioner filed another
Crl.O.P.No.21334 of 2016 for anticipatory bail, in which the de-facto
complainant filed another Intervening Petition. Both the intervening
petitions are verbatim same, identical. Both the anticipatory bail petitions
pending before this Court, got adjourned from time to time at the request of
the learned Public Prosecutor and the intervenor. In the meanwhile, the
petitioner came to know that the respondent Police pasted a notice at his
former residential address, purporting to be a summon under Section 160
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Crl.O.P.No.22067 of 2016 &
W.P.No.32926 of 2016
Cr.P.C. The said summons clearly shows that the complaint was given by
the de-facto complainant's wife on 02.09.2016 before reregistration of case.
Hence, the petitioner filed W.P.No.32926 of 2016 to quash the said
summons on the ground that the Deputy Superintendent of Police has no
jurisdiction to issue such summons under Section 160 Cr.P.C. The power to
issue summons to witnesses under Section 160 Cr.P.C. would become
available only after an F.I.R. is registered and investigation is taken up and
that too, only by the Investigating Officer concerned. Summons cannot be
issued to the accused under Section 160 Cr.P.C. Instead of sending notice
under Section 41(A) Cr.P.C. for preliminary enquiry, in which case, the
petitioner cannot be arrested, the Deputy Superintendent of Police chose to
issue notice under Section 160 Cr.P.C., which established his intention to
arrest the petitioner. A reading of the said summon shows that the de-facto
complainant's wife Sripriya had given a complaint on 02.09.2016 i.e., prior
to the complaint in Crime No.391 of 2016.
9. The learned counsel for the petitioner further submitted that the
entire episode is a case of deliberate and gross violation and disobedience of
the directions of the Hon'ble Supreme Court in Arnesh Kumar vs. State of
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Crl.O.P.No.22067 of 2016 &
W.P.No.32926 of 2016
Bihar reported in AIR 2014 SC 2756.
10. The learned counsel for the petitioner further submitted that it is a
clear case where the Police Officers acted hand in glove with the de-facto
complainants and perpetrated a fraud with the sole view to arrest the
petitioner and extract some material from him under threat and coercion to
help the de-facto complainants. In terms of the directions given by the
Hon'ble Supreme Court, the arrest of the kith and kin of the petitioner
amounts to contempt of Court.
11. The learned counsel for the petitioner submitted that the de-facto
complainant's wife, unilaterally cancelled the Deed of Power of Attorney on
04.06.2013 by a Deed of Cancellation, after coming to know about the sale
deed executed in favour of Bharath. The SEBI already passed several
restraint orders against the de-facto complainant and his wife, holding de-
facto complainant, his wife Sripriya and Srihari, the Directors of Sthithi
Insurance Services Pvt. Ltd. and Zylog Systems Ltd. are all ''Persons acting
in concert'' and all of them together, especially, the de-facto complainant and
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Crl.O.P.No.22067 of 2016 &
W.P.No.32926 of 2016
his wife have acted fraudulently, manipulatively and against the interest of
the public and acted with a sinister design. The de-facto complainant's wife
executed an authorisation letter dated 16.05.2013 to the petitioner,
authorising him to pay the sale proceeds to “Big Nile Ventures Limited”.
12. The learned counsel for the petitioner further submitted that the
petitioner is innocent. He ascertained the guideline value of the land, which
worked out less than the sale price. On the same day of the sale deed, he
remitted Rs.1.2 Crores to Big Nile as authorised, which is reflected in his
Bank Pass Book. He wrote a letter dated 06.06.2012 immediately to the
de-facto complainant's wife requesting her instructions regarding the cheque
for Rs.29 Lakhs. The said letter got returned ''Unclaimed''.
13. In support of his submissions, the learned counsel for the
petitioner relied on the judgment of the Hon'ble Supreme Court in Vijaya
Kumar Ghai vs. The State of West Bengal [Crl.A.No.463 of 2022], for the
principle that, filing of two complaints in respect of the same incident or
transaction and failing to disclose the first one in the second complaint
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Crl.O.P.No.22067 of 2016 &
W.P.No.32926 of 2016
amounts to mala fide suppression of a material fact.
14. The learned counsel for the petitioner further relied on the
judgment of the Hon'ble Supreme Court in Kapil Agarwal and others vs.
Sanjay Sharma and others reported in 2021 SCC Online 154, and
submitted that if it is found that the subsequent F.I.R. is an abuse of process
of law and/or the same has been lodged only to harass the accused, the same
can be quashed.
15. The learned counsel for the petitioner further relied on the
judgments of the Hon'ble Supreme Court in Harshendra Kumar D vs.
Rebatilata Koley reported in 2011 (3) SCC 351, and Rajiv Thapar and
others vs. Madan Lal Kapoor reported in 2013 (3) SCC 330 for the
proposition that, for quashing a complaint, the High Court may look into
and consider documents produced, that are beyond suspicion or doubt.
16. Finally, the learned counsel for the petitioner relied on the
judgment of the Hon'ble Supreme Court in Oswal Fats and Oils Ltd., vs.
Additional Commissioner (Administration), Bareilly Division reported in
2010 (4) SCC 728, for the principle that, a litigant, who attempts to pollute
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Crl.O.P.No.22067 of 2016 &
W.P.No.32926 of 2016
the stream of justice is not entitled to any relief or indulgence.
17. The learned Government Advocate (Crl. side) submitted that the
petitioner induced the de-facto complainant's wife to execute the Deed of
Power of Attorney, dated 16.05.2013, promising her to buy shares in the
share market for her. After obtaining Power of Attorney, the petitioner did
neither had any communication with the de-facto complainant's wife, nor did
he procure any shares for her. In August, 2016, the de-facto complainant
received information that some strangers were frequently visiting his lands
and therefore, on 14.08.2016, the de-facto complainant along with his wife
and brother-in-law went to the land, found the petitioner and others
measuring the land, when they questioned the petitioner about the same,
petitioner informed them he had sold the land to one Bharath, which gave
rise to a verbal quarrel and the petitioner and others abused the de-facto
complainant's group, beat them with hands and threatened them with dire
consequences. Further, the petitioner did not respond to the call of the
Police. Hence, summons issued, directing him to appear before the Deputy
Superintendent of Police on 15.09.2016 at 10.00 a.m. for enquiry. He
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.22067 of 2016 &
W.P.No.32926 of 2016
further submitted that belated registration of F.I.R. is always not fatal to the
prosecution in every case, preliminary enquiry is permitted to ascertain
certain details, all can be explained at the time of Trial.
18. The learned counsel for the de-facto complainant and his wife
reiterated the averments made in the complaint and prayed for dismissal. It
is submitted that power of attorney obtained by deceitful manner, with false
promise that the land will be held as security for the business venture in the
share market, No shares were purchased by “Big Nile Ventures Limited” .
No share statements, furnished to the defacto complainant and his wife,
further by misusing the power of Attorney, the petitioner usurped, cheated
and misappropriated the valuable property of the defacto complaint's wife.
The petitioner was not authorised to execute any sale deed. In this case the
said Bharath is only a name lender, the petitioner created false documents,
Projecting and using the same as genuine had committed the offence, in
connivance with the involvement of other persons, money trail, seizure of
documents and recovery of ill-gotton money can be made only during
investigation. The investigation cannot be short-circuited. Hence prayed for
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Crl.O.P.No.22067 of 2016 &
W.P.No.32926 of 2016
dismissal of the quash petition.
19. By way of reply, the learned counsel for the petitioner submitted
that the petitioner had promptly submitted all the relevant documents to the
respondent Police in response to the complaint of the de-facto complaint's
wife. Suppressing the earlier complaint and material facts, the de-facto
complainant foisted a false case against the petitioner, so as to give a
criminal colour to the civil dispute and therefore, same is liable to be
quashed.
20. I have heard the learned counsel appearing for the parties and
perused the materials on record.
21. It is seen that the Criminal Original Petition is filed seeking to
quash the F.I.R. in Crime No.391 of 2016 and W.P.No.32926 of 2016
seeking to issue a Writ of Certiorari, calling for the records relating to
summons in C.No.C.1/4018/GP-NZ/201, dated 13.09.2016, issued under
Section 160 of Cr.P.C.
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.22067 of 2016 &
W.P.No.32926 of 2016
22. The petitioner is the friend of Sunil Raheja of Mumbai, who is
running a business in the name and style of Big Nile Ventures Limited. The
de-facto complainant and his wife had some business dealings with the said
Big Nile Ventures Limited. In pursuant to the business dealings, the de-
facto complainant's wife had executed a Power of Attorney, dated
16.05.2013 in favour of the petitioner, which is a registered document.
Thereafter, the property was sold in favour of one Bharath by the petitioner.
The de-facto complainant's wife/fourth respondent filed a Civil Suit in
C.S.No.379 of 2013 before this Court. Further, she filed W.P.No.21183 of
2013, questioning the act of the Sub-Registrar, to reject the sale deed and
also for investigation which got dismissed. Subsequently, the Civil Suit was
withdrawn, Later, she filed a suit before the District Munsif Court,
Sriperumbudur in O.S. No.261 of 2016. The admitted case of the defacto
complaint's wife S. Sripriya is that earlier she filed O.A. NO.422/2013 in CS
No. 379/2013, seeking not to create encumbrance to her property, filling of
W.P.No.19495/2013 by the said Bharath, got release of Sale Deed
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Crl.O.P.No.22067 of 2016 &
W.P.No.32926 of 2016
document to him. She also confirms withdrawal of Civil Suit CS No.
379/2013 filed before the High Court on 09.01.2015. The execution of
Power of Attorney Doc. No. 1203 of 2013 on 16/05/2013, letter of
undertaking deed dated 16/05/2013 share trading venture are not denied.
The defacto complaint questions execution of Sale Deed by the petitioner in
favour of Bharath. This is purely a civil dispute, for which, civil suit already
filed. The Apex Court in plethora of Judgements held, criminal case cannot
be used to settle civil disputes.
23. The gravamen of the complaint is that using the Power of
Attorney, without authority of the de-facto complainant's wife/fourth
respondent, a sale deed has been executed by the petitioner in favour of
Bharath and thereby, he committed the offence of cheating and other
offences of abuse and threat.
24. From the sequence of events as discussed above, it is seen that the
Power of Attorney was executed in connection with the business
transactions and thereafter, the sale deed was executed. The sale
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Crl.O.P.No.22067 of 2016 &
W.P.No.32926 of 2016
consideration has been adjusted towards the de-facto complainant's and his
wife's business account, which cannot be termed as cheating. Execution of
power of Attorney, letter of undertaking are not denied.
25. In view of the above, this Court finds that a civil dispute has been
given criminal colour, which is abuse of process of law. Hence, this Court
quashes the proceedings in Crime No.391 of 2016 and also the summons in
C.No.C.1/4018/GP-NZ/201, dated 13.09.2016, issued under Section 160 of
Cr.P.C. Accordingly, both the Criminal Original Petition and the Writ
Petition are allowed. No costs. Consequently, connected Miscellaneous
Petitions are closed.
28.07.2023
Index : Yes/No
Internet: Yes/No
Neutral Citation: Yes/No
smn2/vv2
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.22067 of 2016 &
W.P.No.32926 of 2016
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.22067 of 2016 &
W.P.No.32926 of 2016
To
1.The Deputy Superintendent of Police,
Chengalpattu Road,
Sriperumpudur – 602 105.
2.The Inspector of Police,
Somangalam Police Station,
Kancheepuram District – 602 301.
3.The Public Prosecutor,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.22067 of 2016 &
W.P.No.32926 of 2016
M.NIRMAL KUMAR, J.
smn2/vv2
Pre-delivery common order made in
Crl.O.P.No.22067 of 2016
&
W.P.No.32926 of 2016
28.07.2023
https://www.mhc.tn.gov.in/judis
