Madras High Court
Padmavathy vs State Rep. By on 24 November, 2023
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.OP.No.13480 of 2021
'IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.11.2023
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
Crl.OP.No.13480 of 2021
and Crl.MP.No.7402 of 2021
1.Padmavathy
2.Kousalya ... Petitioners
Vs.
1.State Rep. by,
The Inspector of Police,
CCB Team, 9(A), EDF-II,
Vepery, Chennai 600 007
2.Muthukumarasamy ... Respondents
PRAYER: Criminal original petition is filed under Section 482 of Cr.P.C. to
call for the records pertaining to the CC.No.450 of 2016 on the file of the CCB-
CBCID Metropolitan Magistrate, Egmore, Chennai 600 008 filed by the first
respondent / complainant and to quash the same against the petitioners.
For Petitioners : Mr.K.G.Senthil Kumar
For Respondents
For R1 : Mr.A.Gopinath,
Government Advocate(crl.side)
For R2 : Mr.V.Murugesan
ORDER
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This Criminal Original Petition has been filed to quash the
proceedings in CC.No.450 of 2016 on the file of the CCB-CBCID Metropolitan
Magistrate, Egmore, Chennai thereby taken cognizance for the offences under
Sections 406, 420, 465, 471 r/w Section 34 of IPC as against the petitioner and
three others.
2. The case of the prosecution is that accused 1 and 2 expressed their
willingness to sell the flat which is under construction in the land comprised in
survey No.1939, old No.108/13, new No.32/13, II Floor, TP Koil Street,
Oolagappan Street side, Triplicane Chennai admeasuring 1551 sq.ft. The wife
of the defacto complainant agreed to purchase the same and entered into a
construction agreement on 24.10.2002. In respect of undivided share, the sale
deed was executed in her favour on 18.06.2003. On the strength of the
agreement, loan was borrowed and thereafter entire amount was paid to A1 and
A2 and was taken possession of the flat. Thereafter, on 05.06.2003, A1 and A2
assured to construct another flat admeasuring 600 sq.ft. towards western side
of the flat which was purchased by the wife of the complainant and entered
into an agreement with the third accused. In respect of the undivided share,
they also executed sale deed on 09.03.2004. The respective flat was also
handed over on 02.04.2004 in favour of the wife of the second respondent.
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They also assured to complete the construction within a stipulated time. While
being so, in respect of the very same flat, the accused 1 and 2 had entered into
an agreement with A3 and A4 i.e. the petitioners herein on 20.04.2004. On the
strength of the said agreement, they approached bank and availed loan to the
tune of Rs.5,50,000/-. Thereafter, they committed default and their
whereabouts are not known. Now, the banker is taking steps to proceed under
the SARFAESI Act to realise the loan amount. Hence, the complaint. On receipt
of the said compliant, the first respondent registered FIR in crime No.540 of
2010 for the offence under Sections 406, 420, 465, 471 of IPC r/w 34 of IPC.
After completion of investigation, final report was filed and the same was taken
cognizance by the trial court in CC.No.450 of 2016. There are totally four
accused, in which the petitioners are arrayed as A3 and A4.
3. The learned counsel for the petitioners would submit that the
petitioner's construction agreement is earlier to the agreement entered with the
defacto complaint. That apart, they are also bonafide purchasers and they have
nothing to do with the crime along with the other accused persons.
4. Heard, the learned counsel appearing on either side.
5. On perusal of records revealed that the petitioners are close
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relatives i.e. the wife and the sister in law of the second accused. Therefore, in
order to cheat the wife of the second respondent, in respect of the very same
flat which was already purchased by the wife of the second respondent, they
had entered into an agreement for construction. On the strength of the said
agreement, the petitioners also availed loan and thereafter committed default.
Now the banker is taking steps to realise the loan amount by auctioning he
subject property. Therefore, there are ingredients to attract the offences under
Sections 406, 420, 465, 471 of IPC r/w 34 of IPC as against the petitioners.
6. It is relevant to rely upon the judgment of the Hon'ble Supreme
Court of India passed in Crl.A.No.579 of 2019 dated 02.04.2019 in the case of
Devendra Prasad Singh Vs. State of Bihar & Anr., wherein it is held as
follows:-
" 12.So far as the second ground is concerned, we are of
the view that the High Court while hearing the application under
Section 482 of the Cr.P.C. had no jurisdiction to appreciate the
statement of the witnesses and record a finding that there were
inconsistencies in their statements and, therefore, there was no
prima facie case made out against respondent No.2. In our view,
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this could be done only in the trial while deciding the issues on
the merits or/and by the Appellate Court while deciding the
appeal arising out of the final order passed by the Trial Court
but not in Section 482 Cr.P.C. proceedings.
13.In view of the foregoing discussion, we allow the
appeal, set aside the impugned order and restore the
aforementioned complaint case to its original file for being
proceeded with on merits in accordance with law.
7. The Hon'ble Supreme Court of India dealing in respect of the very
same issue in Crl.A.No.1572 of 2019 dated 17.10.2019 in the case of Central
Bureau of Investigation Vs. Arvind Khanna, held as follows:
“19. After perusing the impugned order and on hearing
the submissions made by the learned senior counsels on both
sides, we are of the view that the impugned order passed by the
High Court is not sustainable. In a petition filed under Section
482 of Cr.P.C., the High Court has recorded findings on several
disputed facts and allowed the petition. Defence of the accused
is to be tested after appreciating the evidence during trial. The
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very fact that the High Court, in this case, went into the most
minute details, on the allegations made by the appellant-C.B.I.,
and the defence put-forth by the respondent, led us to a
conclusion that the High Court has exceeded its power, while
exercising its inherent jurisdiction under Section 482 Cr.P.C.
20.In our view, the assessment made by the High Court at
this stage, when the matter has been taken cognizance by the
Competent Court, is completely incorrect and uncalled for.”
8. Further the Hon'ble Supreme Court of India also held in the order
dated 02.12.2019 passed in Crl.A.No.1817 of 2019 in the case of M.Jayanthi
Vs. K.R.Meenakshi & anr, as follows:
"9. It is too late in the day to seek reference to any
authority for the proposition that while invoking the power
under Section 482 Cr.P.C for quashing a complaint or a charge,
the Court should not embark upon an enquiry into the validity of
the evidence available. All that the Court should see is as to
whether there are allegations in the complaint which form the
basis for the ingredients that constitute certain offences
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complained of. The Court may also be entitled to see (i) whether
the preconditions requisite for taking cognizance have been
complied with or not; and (ii) whether the allegations contained
in the complaint, even if accepted in entirety, would not
constitute the offence alleged.
..............
13. A look at the complaint filed by the appellant would
show that the appellant had incorporated the ingredients
necessary for prosecuting the respondents for the offences
alleged. The question whether the appellant will be able to prove
the allegations in a manner known to law would arise only at a
later stage...................."
9. In view of the above discussion, this Court is not inclined to quash
the proceedings in CC.No.450 of 2016 on the file of the CCB-CBCID
Metropolitan Magistrate, Egmore, Chennai. The petitioners are at liberty to
raise all the grounds before the trial Court. Considering that the petitioners are
ladies, the personal appearance of the petitioners is dispensed with and they
shall be represented by a counsel after filing appropriate application. However,
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the petitioners shall be present before the Court at the time of furnishing of
copies, framing charges, questioning under Section 313 Cr.P.C. and at the time
of passing judgment. The trial Court is directed to complete the trial within a
period of six months from the date of receipt of copy of this Order.
10. Accordingly, this criminal original petition is dismissed.
Consequently, connected miscellaneous petition is closed.
24.11.2023
Index :Yes/No
Internet : Yes/No
Speaking order/non-speaking order
lok
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To
1.The CCB-CBCID Metropolitan Magistrate,
Egmore, Chennai 600 008
2.The Inspector of Police,
CCB Team, 9(A), EDF-II,
Vepery, Chennai 600 007
3.The Government Advocate,
High Court of Madras
G.K.ILANTHIRAIYAN, J.
lok
https://www.mhc.tn.gov.in/judis
24.11.2023
https://www.mhc.tn.gov.in/judis
