Madras High Court
T.Subbulakshmi vs State Of Tamilnadu on 29 November, 2023
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.O.P.No.536 of 2022
THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.11.2023
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.No.536 of 2022 and
Crl.M.P.Nos.195 & 197 of 2022
1. T.Subbulakshmi
2. Yuba T.Reichard ... Petitioners
Vs.
1. State of TamilNadu
Rep. by Assistant Commissioner of Police,
Central Crime Branch (CCB),
Chennai-600 007.
(Crime No.154 of 2012).
2. Ankul Vij ... Respondents
PRAYER : Criminal Original Petition filed under Section 482 of Cr.P.C.
praying to call for the records in C.C.No.2777 of 2021 on the file of the
learned Special Metropolitan Magistrate, Special Court for Exclusive
Trial of Land Grabbing Cases-II, Chennai and quash the same.
For Petitioners : Mr.Manuraj
For Respondent 1 : Mr.L.Baskaran,
Government Advocate (Crl.Side)
For Respondent 2 : Mr.T.V.Vineeth Kumar
1/14
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.536 of 2022
ORDER
This Criminal Original Petition has been filed to quash the
proceedings in C.C.No.2777 of 2021 on the file of the learned Special
Metropolitan Magistrate, Special Court for Exclusive Trial of Land
Grabbing Cases-II, Chennai thereby taken cognizance for the offences
punishable under Sections 419,420,467,468,471 r/w.Section 120B of
IPC.
2. The case of the prosecution is that the 2nd respondent lodged a
complaint alleging that his father-in-law had purchased Plot Nos.693 and
694 in VGP Golden Beach, Uthandi in the name of his brother-in-law
and his wife respectively from VGP Housing Pvt., Ltd., by the registered
sale deed dated 18.03.1981. Thereafter, they came to understand that the
2nd and 3rd accused impersonated the purchasers as if the owners of the
property and executed power of attorney in favour of the 1st accused. In
turn, the 1st accused executed a registered sale deed in favour of the 4th
and 5th accused. In turn, they had executed power of attorney in favour
of 6th accused. On the strength of the same, 6th accused executed a sale
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deed in favour of 7th accused. Thereby, they conspired together in order
to grab the properties owned by the Defacto-complainant's brother-in-law
and his wife and impersonated them and also fabricated the documents
and grabbed the property. Hence, the complaint.
3. On receipt of the said complaint, the 1st respondent registered
FIR in Cr.No.154 of 2012 for the offences punishable under sections
420,465,467,468,471 r/w.120B of IPC. After completion of investigation
final report was filed and taken cognizance in C.C.No.2777 of 2021 on
the file of the learned Special Metropolitan Magistrate, Special Court for
Exclusive Trial of Land Grabbing Cases-II, Chennai for the offences
punishable under sections 419,420,467,468,471 r/w 120(B) of IPC.
4. The learned counsel appearing for the petitioners submitted that
these petitioners are arrayed as Accused Nos.4 and 5. They are innocent
bonafide purchasers of the subject property. They purchased two Plots
bearing Nos.693 and 694 in VGP Golden Beach, Uthandi Village
through power of attorney of the original owners of the plots by
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registered sale deed dated 20.06.2001 vide Document Nos.1584 and
1585 of 2001. In turn, the 1st petitioner had executed a power of attorney
on 09.08.2005 vide document No.1592 of 2005 in favour of Accused
No.6. Simultaneously, the 2nd petitioner also had executed a power of
attorney in favour of the 6th accused on 13.09.2005 vide document
No.517 of 2005. In turn, the 6th accused had executed a sale deed in
favour of the 7th accused on 28.10.2005 vide document No.6230 of 2005.
5. He further submitted that the 7th accused has already been
discharged by the learned trial court, since he is a bonafide purchaser of
the subject property. The petitioners also stand in the same footing, since
they are also bonafide purchasers of the subject property. In fact, now the
7th accused filed a suit for permanent injunction in O.S.No.487 of 2012
on the file of the Principal District Munsif Court at Alandur and the same
has been decreed by its judgement and decree dated 09.04.2013 in his
favour and as against the Defacto-complainant. Therefore, these
petitioners are nothing to do with the crime alleged by the 2nd respondent.
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6. The learned counsel for the 2nd respondent would submit that all
the accused persons conspired together in order to grab the properties.
The 2nd and 3rd accused impersonated the original owners of the property
and executed power of attorney in favour of the 1 st accused. In turn, the
1st accused had executed sale deed in favour of the petitioners herein.
Therefore, they are all joined and conspired together to grab the
properties. That apart, grounds raised by these petitioners can be
considered only before the trial court and not under section 482 of
Cr.P.C.
7. The learned Government Advocate(Criminal Side) submitted
that there are totally seven accused. These petitioners are arrayed as 4th
and 5th accused. Though, they are subsequent purchasers of the subject
property, they conspired with the other accused persons in order to grab
the subject properties and they created sale deeds in their favour.
Subsequently, they had sold out the properties in favour of the 7th
accused through their power agent i.e., the 6th accused. Therefore, there
are specific allegations and materials available to bring the charges to
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home. Hence, he prayed for dismissal of this quash petition.
8. On perusal of the records, it is seen that there are totally seven
accused, in which these petitioners are arrayed as Accused Nos.4 and 5.
The property comprised in S.No.2/2B1 bearing Plot Nos.693 and 694
admeasuring 4800 sq.ft., situated at V.G.P.Golden Beach, Uthandi
Village was purchased by the 2nd respondent's brother-in-law and his wife
by a registered sale deed dated 18.03.1981 vide document Nos.693 of
1981 and 694 of 1981. Both the house plots are vacant land. After the
purchase of both plots, neither the 2nd respondent nor the purchasers are
in possession of their subject plots. Since then, the 2nd respondent is
continuously residing in New Delhi. Occasionally he came to the house
plots. By utilizing the absence of the landlord, the Accused Nos.1 to 3
are conspired together to usurp the said property. The 2nd and 3rd accused
had impersonated themselves as 2nd respondent's brother-in-law
Mr.Sathiyapal Malhotra and his wife Mrs.Seema Malhotra, as if they are
the plot owners and they had executed power of attorney in favour of the
1st accused for the said plots on 30.03.1999 and registered vide
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Document No.327 of 1999. Thereafter, the 1st accused had marketed
both the house plots for sale. The petitioners herein agreed to purchase
both the house plots for valid sale consideration. Accordingly, the 1st
petitioner had purchased the plot No.693 registered vide document
No.1584 of 2001 on 20.06.2001. On the same day, the 2nd petitioner had
also purchased another Plot No.694 vide document No.1585 of 2001.
After a period of four years, from the date of their purchase, both had
executed power of attorney separately in favour of 6th accused. The 1st
petitioner executed power of attorney vide document No.1592 of 2005 on
09.08.2005. The 2nd petitioner had executed power of attorney in favour
of the 6th accused on 13.09.2005 vide document No.517 of 2005. After a
period of five years, the 6th accused, from the date of execution of power
of attorney, executed sale deed in favour of the 7th accused. The 7th
accused had purchased both the house plots for a valid sale
consideration.
9. On perusal of the records revealed that the 7 th accused filed a
suit for permanent injunction as against the 2nd respondent and the
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original purchasers in O.S.No.487 of 2012 on the file of the Principal
District Munsif Court at Alandur. The said suit was decreed by the
judgment and decree dated 09.04.2013. As against the said judgment and
decree, no appeal has been filed by the 2nd respondent or the original
owners of the properties. Therefore, the judgement and decree in the said
suit became final and thereby the 2nd respondent and original owners of
the property are restrained by means of permanent injunction in any
manner disturbing the 7th accused peaceful possession and enjoyment of
the subject properties. Therefore, these petitioners are nothing to do with
the allegations. They are neither impersonated nor made any false
representation. Now they have been charged for the offences under
section 420 of IPC.
10. It is also relevant to extract the provision under Section 420 of
IPC hereunder:
420. Cheating and dishonestly inducing delivery of
property.—Whoever cheats and thereby dishonestly
induces the person deceived to deliver any property to
any person, or to make, alter or destroy the whole or any
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part of a valuable security, or anything which is signed or
sealed, and which is capable of being converted into a
valuable security, shall be punished with imprisonment of
either description for a term which may extend to seven
years, and shall also be liable to fine.
11. It is observed in the case of Md.Ibrahim &Ors Vs. State of
Bihar &Anr reported in 2009 (8) SCC 751, as follows:
14. …. a person is said to have made a “false
document”, if
(i) he made or executed a document claiming to be
someone else or authorised by someone else; or
(ii) he altered or tampered a document; or
(iii) he obtained a document by practicing deception,
or from a person not in control of his senses.
Therefore, the offence under Section 420 of IPC is not at all made
out as against the petitioners, since the petitioners neither made any
dishonest nor any fraudulent representation.
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12. Further, the 2nd respondent is neither the owner of the property
nor the power holder. However, he lodged complaint on behalf of his
brother-in-law and his wife. The 7th accused had purchased the subject
properties on 28.10.2005. He lodged a complaint only on 21.03.2012.
The Accused Nos.2 and 3 had executed Power of attorney even on
30.03.1999. Therefore, the complaint was lodged after a period of 13
years. There is no reason for the belated complaint. Admittedly, these
petitioners are no way connected with Accused No.1 to 3. Therefore, in
order to attract the offence under section 120(b) of IPC, there should be
an agreement between persons who are alleged to conspire and the said
agreement should be for doing an illegal act or for doing illegal means an
act which itself may not be illegal. Therefore, the essence of criminal
conspiracy is an agreement to do an illegal act.
13. On perusal of statement recorded under section 161 of Cr.P.C,
no one has spoken about the role played by the petitioners along with
Accused No.1 to 3. The entire allegations only as against the Accused
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No.1 to 3. Even according to the case of the prosecution, the 2nd and 3rd
accused had impersonated themselves as Defacto-complainant's brother-
in-law and wife and executed power of attorney in favour of the 1 st
accused. Therefore, the offences under section 120(b) of IPC is not at all
attracted as against these petitioners. These petitioners are the bonafide
purchasers and they had no knowledge about the impersonation
committed by Accused No.2 and 3. They are bonafide over the subject
properties and on verification of records through power of attorney i.e.,
Accused No.1, they had purchased the subject properties by registered
sale deed. Therefore, there is no question of fabrication of any records,
when the execution of a sale deed by a person, purporting to convey a
property which is not of his, as his property, is not making a false
document and therefore not forgery. Such an act can never be a criminal
offence. If a person sells a property knowing that it does not belong to
him, and thereby defrauds the person who purchased the property, the
person defrauded, that is the purchaser, may complain that the vendor
committed the fraudulent act of cheating. But a third party who is not the
purchaser under the deed may not be able to make such complaint. In the
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case on hand, the 2nd respondent neither vendor nor a purchaser of the
subject property. If any grievance, the petitioners are ought to have
lodged complaint since they are bonafide purchaser of the subject
property for valid sale consideration. Therefore, no malice can be
attributed as against the petitioners. That apart, 7th accused was already
discharged by the trial court since he is also a subsequent and bonafide
purchaser of the subject properties.
14. In view of the above the impugned proceedings cannot be
sustained as against these petitioners and it is liable to be quashed.
Therefore, the proceedings in C.C.No.2777 of 2021 on the file of the
learned Special Metropolitan Magistrate, Special Court for Exclusive
Trial of Land Grabbing Cases-II, Chennai is quashed only against these
petitioners. Accordingly, this Criminal Original Petition is allowed.
Consequently, connected miscellaneous petition is closed. The trial court
is directed to proceed with trial as against the Accused Nos.1 to 3 in the
manner known to law.
29.11.2023
Internet: Yes
Index: Yes/No
https://www.mhc.tn.gov.in/judis
Speaking/Non-speaking order
gvn
To
1) The Special Metropolitan Magistrate,
Special Court for Exclusive Trial of
Land Grabbing Cases-II, Chennai
2) The Assistant Commissioner of Police,
Central Crime Branch (CCB),
Chennai-600 007.
3) The Public Prosecutor,
High Court Madras.
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G.K.ILANTHIRAIYAN, J.
gvn
and
Crl.M.P.Nos.195 & 197 of 2022
29.11.2023
https://www.mhc.tn.gov.in/judis
