Madras High Court
S.Gnanadeepam vs State Rep. By on 24 November, 2023
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.O.P.No.32705 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.11.2023
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.No.32705 of 2014
S.Gnanadeepam .... Petitioner
Vs
1. State rep. by
Inspector of Police,
Central Crime Branch,
Chennai – 600 008.
2. S.Mohan Kumar .... Respondents
Prayer: Criminal Original petition filed under Section 482 of Code of
Criminal Procedure, to call for the records in Cr.No.453 of 2014 pending
on the file of the first respondent police and quash the FIR as against the
petitioner.
For Petitioners : Mr.A.Ramesh,
Senior Counsel
for Mr.J.Suresh
For R1 : Mr.L.Baskaran
Government Advocate (Crl.Side)
For R2 : Mr.B.Gopalakrishnan
ORDER
This Criminal Original Petition has been filed to quash the
FIR in Crime No.453 of 2014 pending on the file of the first respondent.
2. The case of the prosecution is that the second respondent
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entered into an agreement with the first accused to purchase the land
admeasuring 61 Ares 53 cents for a total sale consideration of
Rs.13,00,00,000/- and paid a sum of Rs.3,05,00,000/- as advance on the
date of agreement viz., 22.12.2010. For the security purpose, for the
amount received by the accused, they had given a pronote, cheques and
other original documents in respect of other properties. They did not
give any receipt for the amount received by them. As per the agreement,
the accused failed to execute any sale deed on receipt of the balance sale
consideration, thereby, they cheated the second respondent the amount
which was received as advance. Hence, the complaint.
3. On the receipt of the said complaint, the first respondent
registered FIR in Crime No.453 of 2014 for the offence under Sections
406 & 420 of IPC read with 34 of IPC.
4. The learned Senior Counsel appearing for the petitioner
submitted that there are totally two accused, in which the petitioner is
arrayed as second accused. She is none other than the wife of the first
accused. Even according to the first accused, he had entered into an
agreement for sale for a sum of Rs.13,00,00,000/-. The subject property
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is owned by the first accused. The petitioner is implicated falsely and no
offence is made out as against the petitioner.
5. On perusal of the entire FIR, it is clear that all the
allegations are civil in nature. Even according to the second respondent,
he advanced a sum of Rs.3,05,00,000/- in order to purchase the subject
property and entered into an agreement for sale. Thereafter the accused
failed to execute the sale deed. Therefore, the second respondent ought to
have filed a suit for specific performance in order to execute the sale deed
in his favour. No offence is attracted as against the petitioner and the FIR
is liable to be quashed. That apart, the second respondent filed a suit for
recovery of money before this Court in C.S.No.786 of 2012.
6. A perusal of the suit pleadings shows that the second
respondent did not even whisper about the agreement, which was
allegedly entered between the first accused and the second respondent.
The suit was simply filed for recovery of money, since the said amount
was paid by loan. In fact, pending the said suit, the second respondent
filed an application for interim injunction restraining the accused from
selling, leasing, encumbering or dealing with the subject property and the
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same was dismissed and the order of the Hon'ble Division Bench of this
Court in O.S.A.Nos. 251 & 252 of 2013 was confirmed. Suppressing all
those facts, the second respondent lodged a false complaint. In support
of his contention, he relied upon the Judgment reported in 2023 SCC
Online SC 90 in the case of Usha Chakraborty and another Vs. State of
West Bengal and another.
7. The learned Government Advocate (Criminal Side)
appearing for the first respondent submitted that there are specific overt
act as against the petitioner, in order to attract the offence under Sections
406 & 420 of IPC. The petitioner is none other than the wife of the first
accused. In fact, after receipt of a sum of Rs.3,05,00,000/- as advance,
both the accused submitted documents as security. The said property
was owned by the petitioner and subsequently sold out to third parties in
order to cheat the second respondent.
8. He also relied upon the Judgment of the Hon'ble
Supreme Court of India in the case of Neeharika Infrastructure Pct. Ltd
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Vs. State of Maharashtra reported in 2021 SCC online SC 315, in
which the Hon'ble Supreme Court of India held that the first information
report is not an encyclopaedia which must disclose all facts and details
relating to the offence reported. Therefore, when the investigation by the
police is in progress, the Court should not go into the merits of the
allegations in the FIR. Police must be permitted to complete the
investigation. It would be premature to pronounce the conclusion based
on hazy facts that the complaint/FIR does not deserve to be investigated
or that it amounts to abuse of process of law. During or after
investigation, if the investigating officer finds that there is no substance in
the application made by the complainant, the investigating officer may
file an appropriate report before the learned Magistrate.
9. Heard the learned counsel appearing on either side and
perused the materials available on record.
10. It is seen from the records that there are totally two
accused, in which the petitioner is arrayed as second accused. She is the
wife of the first accused. The second respondent herein had entered into
an agreement for sale dated 22.12.2010, thereby agreed to purchase the
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property owned by the first accused for a total sale consideration of
Rs.13,00,00,000/-. On the date of agreement, he paid a sum of
Rs,3,05,00,000/- as advance. Thereafter, the first accused failed to
execute any sale deed and hence, the second respondent lodged a
complaint. It is also revealed that the second respondent is a financier
and used to lend money. The first accused borrowed some amount and
repaid the same. While borrowing the amount, he had given documents,
pronote and cheques. Therefore, after repayment of the loan amount, the
second respondent failed to return the documents. Hence, the first
accused caused legal notice on 11.06.2012, thereby called upon the
second respondent to return the cheques, signed papers and other
documents and also not to misuse those documents. Even then, the
second respondent presented some cheques and initiated the proceedings
under Section 138 of Negotiable Instruments Act as against the first
accused.
11. That apart, the second respondent also filed a suit in
C.S.No.786 of 2012 for the following prayers, which is pending :
(a) Directing the defendant to pay a sum of
Rs.16,12,00,000/- together with interest at the rate of 24%
p.a. accrued on the sum of Rs.13,00,00,000/- from the
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date of plaint till repayment in entirety.
(b) Permanent injunction restraining the defendant,
his men, servants, agents or any person acting under him
from selling, leasing, encumbering or dealing with the
properties given as collateral security mentioned in the
schedule hereunder in any manner till repayment of entire
loan and accumulated interest.
(c) to pay cost of the suit.
(d) and pass such further or other orders as this
Hon'ble Court may deem fit and proper in the
circumstances of the case.
12. On perusal of the entire complaint, there is no whisper about
the agreement for sale, which was allegedly entered between the second
respondent and the first accused. Further the said suit was filed for
recovery of money. Pending suit, the second respondent also filed an
application for interim injunction restraining the first accused from
alienating or dealing with the subject property. However, the said
application was dismissed and aggrieved by the same, he also preferred
an appeal in O.S.A.Nos.251 & 252 of 2013 before this Court and the
same was dismissed by the Hon'ble Division Bench of this Court on
04.09.2013. Therefore, no allegations are made as against the petitioner
herein. Even assuming that the first accused received an advance and
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thereafter, failed to execute the sale deed, the second respondent ought to
have filed a suit for specific performance.
13. As rightly pointed out by the learned Senior Counsel
appearing for the petitioner the second respondent had suppressed the
entire facts in respect of filing the suit in C.S.No.786 of 2012 and the
proceedings initiated under Section 138 of Negotiable Insturments Act as
against the accused and lodged a complaint in C.C.No.5611, 5613 &
5614 of 2012 on the file of the II Metropolitan Magistrate Court,
Egmore, Chennai. The non-disclosure the respondent has in troth,
concealed the existence of a pending civil suit between him and the
appellants herein before a competent civil Court, which obviously is the
causative incident for the respondent's allegation of perpetration of the
aforesaid offences against the appellants. It is further held that in the
complaint, coupled with the fact that in respect of the issue involved,
which is of civil nature, the respondent already approached the
jurisdictional civil Court by instituting a civil suit and it is pending.
There can be no doubt with respect to the fact that the attempt on the
part of the respondent is to use the criminal proceedings as weapon of
harassment against the appellants. The indisputable facts that the
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respondent had filed the pending title suit in the year 2015, he got no
case that he obtained an interim relief against his removal from the office
of Secretary of the School Managing Committee as also the trusteeship.
14. In the case on hand, the second respondent also filed a
suit for recovery of money as if he had lent a sum of Rs.3,00,00,000/- as
loan to the first accused and his interim injunction application was also
dismissed. That apart, as far as the petitioner is concerned, she is
arrayed as A2 and except the relationship viz., wife of the first accused,
no allegation is made out by the petitioner. No offence is made out by
the petitioner under Section 406 & 420 of IPC. Therefore, the Judgment
cited by the learned Government Advocate (Crl.Side) is not helpful to the
case on hand.
15. In view of the above, the FIR in Cr.No.453 of 2014
pending on the file of the first respondent police is hereby quashed. The
first respondent is directed to complete the investigation and file final
report in Crime No.453 of 2014 as against the first accused within a
period of eight weeks from the date of receipt of a copy of this order.
16. In the result, this Criminal Original Petition stands
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allowed.
24.11.2023
Internet: Yes
Index : Yes/No
Speaking/Non Speaking order
Lpp
To
1. Inspector of Police,
Central Crime Branch,
Chennai – 600 008.
2. The Public Prosecutor,
High Court, Madras.
G.K.ILANTHIRAIYAN, J.
Lpp
https://www.mhc.tn.gov.in/judis
24.11.2023
https://www.mhc.tn.gov.in/judis
